Whether the Mediation Confidentiality Was Violated Is Not Crystal Clear From the Opinion
We are always pleased when a case has something to say about mediation – there are far fewer written opinions about mediation than about arbitration.
Aaronson petitioned to nullify her marriage with Oslica, on the ground of purported fraud relating to Oslica’s immigration status at the time of marriage. The case did not go well for Aaronson, who was ordered to pay $15,000 of Oslica’s attorney’s fees and costs. The trial court also sanctioned Oslica’s attorney. In re Marriage of Aaronson and Oslica, Case No. A128516 (1st Dist. Div. 2 May 22, 2012) (Haerle, Acting P.J., author) (unpublished). Aaronson appealed, contending the fee order needed to be reversed because she was unemployed and because the trial court considered other improper factors.
The Court of Appeal affirmed the order, finding that being unemployed was not a blanket protection from getting hit with attorney’s fees under Family Code section 271. However – and this is why we have a post – among the allegedly “improper factors” that Aaronson challenged was the admissibility of settlement discussions showing that she had rejected settlement offers. Family Code section 271 authorizes an award of attorney’s fees as a sanction for frustrating the policy of the law to promote settlement of litigation. Aaronson argued that if settlement discussions are protected in the context of mediation (Evid. Code section 1119), then in her case, settlement discussions between counsel must be protected.
The blanket protection of mediation communications (Evid. Code section 1119), however, is different from the protection of settlement discussions (Evid. Code section 1152). As the Court of Appeal pointed out, not all settlement discussions are inadmissible – only settlement discussions to prove “liability” for a claimed loss or damage. Here, the evidence was admitted after the judgment was entered, to consider whether there had been unreasonable conduct during settlement negotiations – the basis for the award of fees under section 271.
The somewhat murky part of the opinion is whether or not the settlement discussions occurred during mediation. True, just because the settlement discussions occurred between counsel does not mean that they occurred during mediation. Unfortunately, the court’s explanation that “[h]ere . . . after the judgment was entered, the trial court considered evidence pertaining to unreasonable conduct during settlement negotiations in accordance with section 271,” does not clarify whether the settlement conversations occurred during or in connection with mediation. Also, the court’s comment, “[w]e firmly reject the implication that Aaronson was sanctioned solely because her attorney rejected a settlement offer,” suggests even if Aaronson was sanctioned partly because her attorney rejected a settlement offer, and even if that rejection occurred during mediation, the evidence of rejection, even if wrongly considered, was harmless and irrelevant to the outcome. If there was error, it must have been harmless, because “the appellate record is chalk-full of samples of both improper and wasteful litigation tactics.”
While the court has discussed mediation here, we’re not exactly sure what part is dictum and what part is holding. The opinion makes perfect sense if the Court of Appeal is simply telling us that the settlement discussions between counsel were not part of a mediation, and therefore were admissible for a permissible purpose that did not involve establishing liability.