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If one has Mediation in LA County (tenant-landlord matter) anything
discussed apparently can not be brought up later in a trial per
Evidence Codes 1119 and 1120.
Questions:
1.
Does this only apply if a settlement is made?
2.
What if one party - such as a flipped out tenant - later elect not to
honor an agreement?
3.
Should one as a landlord avoid mediation because the tenant has
managed to "remove this evidence" by pretending to use a mediation
procedure and not ever have key matters brought up at a future date?
Thanks in advance
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On Mar 20, 7:23 am, m...@nosam.org wrote:
If one has Mediation in LA County (tenant-landlord matter) anything
discussed apparently can not be brought up later in a trial per
Evidence Codes 1119 and 1120.
I'm not a CA lawyer, but the questions you ask are common to most
forms of mediation. If there are any specific quirks in CA law,
though, you're on your own to note them and YMMV.
Questions:
1. Does this only apply if a settlement is made?
No, the proceedings of the mediation session are not admissible in
evidence during any subsequent lawsuit regardless of what happens at
the session. The idea is to encourage free and open consideration of
various options -- running them up the flagpole, so to speak --
without anything anyone says being taken as a binding commitment or
binding admission of the truth of a fact that is against their
interest, to be used against them later in court, except of course for
the fact of a settlement agreement if one is actually reached -- that
fact _is_ admissible in court if someone later reneges.
2. What if one party - such as a flipped out tenant - later elect not to
honor an agreement?
You mean, the Flipped Out Tenant (FOT) failed to honor the
_preliminary_ agreement of confidentiality, and goes around quoting to
everyone he sees what you said to him at the mediation? And that
hurts you, how, as long as you didn't call him dirty names or
something? You can't shut him up, per the First Amendment. If he
says something that is untrue and defames you, sue him for defamation.
Even if the FOT wanted to, he could not put the contents of the
mediation session into evidence in a later suit -- he may try to
proffer it, but you (thru your attorney of course) would object, and
the judge would sustain your objection.
Or, did you mean, the FOT fails to honor the ultimate agreement
(settlement) that you reached at the mediation session? As I said
above, the fact of the agreement, and the contents of what was agreed
to, are the only things that ARE admissible in evidence that come out
of a mediation session -- and they are generally reduced to writing
right then and there, to avoid having multiple and perhaps differing
interpretations of what was said orally being offered into evidence by
the various parties -- exactly what the rules are trying to avoid.
3. Should one as a landlord avoid mediation because the tenant has
managed to "remove this evidence" by pretending to use a mediation
procedure and not ever have key matters brought up at a future date?
I think I understand what you're asking here, and you're laboring
under a common misperception. The prohibition on placing anything
that happened at the mediation into evidence does not mean that the
_content_ of what was said there cannot be independently presented
into evidence, just that the parties can't testify, "Joe Landlord told
me at the mediation session that ____________________ (X is true)."
FOT (or you) can still competently testify directly that "X is true"
as long as you have personal knowledge of fact X. So there's no
reason you can't get those key matters into evidence just by
testifying to them directly, without making any reference to what
happened at mediation.
And of course, the confidentiality rules for mediation also mean that
neither party can subpoena the mediator to testify to what was said at
the mediation session.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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mike@nosam.org wrote:
If one has Mediation in LA County (tenant-landlord matter) anything
discussed apparently can not be brought up later in a trial per
Evidence Codes 1119 and 1120.
Questions:
1. Does this only apply if a settlement is made?
Yes.
2. What if one party - such as a flipped out tenant - later elect
not
to honor an agreement?
The terms of the agreement can generally be introduced and a judgment
obtained based on those terms. The statute is phrased in a very
esoteric way, however, so you have to follow it closely to be sure a
court will look at even the final agreement.
3. Should one as a landlord avoid mediation because the tenant has
managed to "remove this evidence" by pretending to use a mediation
procedure and not ever have key matters brought up at a future
date?
The tenant can't remove evidence. Just because he says or introduces
something at the mediation doesn't prevent the landlord from
presenting the evidence at trial. You just can't use something that
comes directly from the mediation.
On the other hand if a party lies during mediation, and that causes
the other party to agree to something he otherwise might not have,
some courts have held that fraud during mediation can be introduced
in court later.
Stu
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On Thu, 20 Mar 2008 07:23:28 -0400 in misc.legal.moderated,
mike@nosam.org wrote,
If one has Mediation in LA County (tenant-landlord matter) anything
discussed apparently can not be brought up later in a trial per
Evidence Codes 1119 and 1120.
No. Evidently you missed reading the word "not" in section 1120.
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0352885142+0+0+0&WAISaction=retrieve
The matters discussed are no more and no less admissible in court
than if the mediation had not taken place. It is the mediation
discussion itself, disclosure documents, evidence from the mediation
proceedings and so forth that are not admissible, because the
standards of proof are different in mediation than in court.
If you end up in court you start over from the beginning, unless you
both agree otherwise (sect. 1121).
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On Fri, 21 Mar 2008 08:05:07 -0400, David Harmon <source@netcom.com>
wrote:
On Thu, 20 Mar 2008 07:23:28 -0400 in misc.legal.moderated,
mike@nosam.org wrote,
No. Evidently you missed reading the word "not" in section 1120.
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0352885142+0+0+0&WAISaction=retrieve
The matters discussed are no more and no less admissible in court
than if the mediation had not taken place. It is the mediation
discussion itself, disclosure documents, evidence from the mediation
proceedings and so forth that are not admissible, because the
standards of proof are different in mediation than in court.
If you end up in court you start over from the beginning, unless you
both agree otherwise (sect. 1121).
Thanks all.
The above link only gives me a blank screen. Is it correct? Do I
have to sign up or something first to use the service?
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On Sat, 22 Mar 2008 07:44:37 -0400 in misc.legal.moderated,
mike@nosam.org wrote,
The above link only gives me a blank screen. Is it correct? Do I
have to sign up or something first to use the service?
I'm sorry, I keep forgetting the perversity of the California
legislative search web site. I don't know how to form a persistent
URL directly to the code section page.
I guess you will have to get there the same way I did, by going
to the search page at http://www.leginfo.ca.gov/calaw.html
then checking the box for "evidence Code" and searching for
"mediation".
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On Mar 21, 8:05 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
m...@nosam.org wrote:
Yes.
You're sure of that? It's not what fellow MLM poster David Harmon
thought, and not what I thought either.
So, what possible good does this confidentiality provision do, anyway,
if it _only_ applies to cases where a settlement is made? ISTM those
are the cases that are _not_ going to go to court, since they've been
settled, so no one has to worry about whether what was said in
mediation can be admitted into evidence or not. Rather, it's the
cases that _don't_ settle at mediation, and which later have to go to
trial, where you would want to make sure that the discussions that
occurred around the mediation table could not be brought up later in a
trial as proof of anything or as a binding admission.
Your other comments were right on point IMO, but I think you missed
the boat on this one.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Mike Jacobs <mjacobslaw@gmail.com> wrote:
Stuart Bronstein <spamt...@lexregia.com> wrote:
You're sure of that? It's not what fellow MLM poster David
Harmon thought, and not what I thought either.
You're right. I think I misunderstood the question. He seemed to be
asking if the fact of mediation would eliminate bringing up any of the
issues later, rather than anything actually discussed specifically in
the mediation. If the mediation were successful and an agreement were
made, for the most part only the agreement becomes relevant at that
point.
Your other comments were right on point IMO, but I think you
missed the boat on this one.
Yup. One interesting thing about the California law is that, unless it
is done properly, even the agreement made during the mediation
apparently is inadmissible in a future court action.
Stu
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