An open Letter to the Court

Dear Judge:

With respect, I would like to address you regarding the intent and purpose of California Evidence Code Section 1119 as it relates to Judicial Settlement Conferences occurring after a mediation.

I am a mediator. Mine is a role I believe largely welcomed by the Court. Certainly the growth of mediation, both court annexed and independent, has enjoyed significant support from the judiciary.

In the statement that I make at the commencement of each mediation, I discuss with the parties the unique opportunities for settlement afforded them by the mediation process. I make specific reference to the confidentiality provisions of Evidence Code Sections 1115-1128 as protecting their opportunity to make offers and counter offers without fear of prejudicing their negotiating positions in the future. I may even be so specific as to explain that, "... if settlement is not reached today, the import of the Evidence Code provisions is that tomorrow, these negotiations never happened."

I am, admittedly, a mediator who believes that settlement is generally the primary goal of mediation. Toward that end, I want to assure the parties and the process of every available opportunity to reach that goal.

As you know, the making of offers and demands is a risky venture only reluctantly undertaken by the parties. It is part of my job to encourage that risk taking. Evidence Code Section 1119 is one of the tools available in support of that encouragement. I have come to believe that competent and well-informed counsel, risk managers and decision makers are often much closer to each other in their settlement evaluations than they believe themselves to be. Doubting the likelihood of settlement, however, they are reluctant to make their "best" offers or demands, thereby losing the opportunity to discover their essential agreement.

I am told by counsel in mediations that their refusal to make those further compromises in their positions is often for fear that, failing settlement at the mediation, you will later ask them to disclose those offers and demands at settlement conference.

Section 1119(a) provides, "No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given." I believe that provision is meant to include subsequent settlement conferences.

I understand that knowing the history of negotiations in a dispute can be of great assistance to the Court in seeking resolution at that settlement conference, but I would suggest that in many instances, that settlement conference would not have been necessary had the parties truly believed that they could explore further compromise at mediation without that effort prejudicing their further negotiations. And I believe that that is what the California State Legislature intended. I would like to know if you agree.

Though proud of the work that I do, I do not aggrandize it, and I certainly mean no disrespect to the Court by having written this letter. I will continue to work hard to encourage parties to take risks for settlement of their disputes, and appreciate the support of the Legislature and the Judiciary for the process of mediation.

Respectfully submitted:

Harris E. Weinberg