5. Finally, the legislative history of the mediation confidentiality statutes as a whole reflects a desire that section 1115 et seq. be strictly followed in the interest of efficiency. By laying down clear rules, the Legislature intended to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation. Allowing courts to craft judicial exceptions to the statutory rules would run counter to that intent.

The Supreme Court held that both the clear language of the mediation statutes and the prior rulings support the preclusion of an implied waiver exception. The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process.

Tips to Secure an Enforceable settlement agreement

If you are a party or an advocate to a mediation proceeding, and orally agree to a settlement, REDUCE THE SETTLEMENT TO WRITING, SIGNED BY ALL THE PARTIES. Some mediators do not take this requirement seriously and are very sloppy with having the parties reduce it to writing.

Reduce the settlement to writing AT the mediation. IF NOT, ONE PARTY WILL HAVE BUYER'S REMORSE AND will later REVOKE THE oral CONSENT TO SETTLE.

The parties should draft the settlement agreement, not the mediator.

Make sure that there is a provision in the agreement that the settlement is enforceable pursuant to California Code of Civil Procedure section 664.6, which states that the Superior Court will retain jurisdiction to enforce the terms of the settlement. Following these few simple steps will insure that the dispute has settled and is enforceable if one party does not keep the terms of the agreement.

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