IMAGINE Procedural and Substantive due process violations, mediator’s recommendations.

Imagine that you don’t understand a word of a court ordered custody mediation as you don’t understand a word of English.

Imagine that you cannot read the resulting mediator’s recommendation as you don’t speak a word of English.

Imagine that you bring it to the attention of a judge, when an interpreter is finally made available to you, and his response is to rubber stamp the mediator’s recommendation and to tell the litigant that the interpreter can NOW translate the contents for him.

This is precisely what occurred in Judge Gunn’s court room, when he was still presiding in family law, in Riverside in 2011.

A fraught Latino father tried to explain to his honor, through an interpreter that was finally made available to him, that he could not understand any of the foregoing proceedings as he could not speak a word of English. His honor merely rubber stamped the mediator’s recommendation without agreement in writing or at the hearing a mandatory requirement pursuant to CA evidence code section 1118-1121, and specified to the father that the interpreter could now interpret the resulting “custody order” to him.

There are procedural and substantive due process safe guards contained in the California evidence code, which a court has to address, and that reason is to prevent the above from occurring. 

Our California supreme court has also made it clear, that there are no good cause exceptions that can be invoked for any reason to allow a product from mediation which includes a mediator’s recommendation and the underlying finding to be used in a civil proceeding,  Rojas vSuperior Court126 CalRptr. 2d 97, 102 Cal. App. 4th 1062. … 126 Cal.Rptr.2d 97 (2002). However, our family law courts routinely ignore that minor fact and carve out legislative exceptions on a day to day basis, contravening the existing rulings of our Supreme Court, which also confirms that the sole purpose of mediation is to see if an agreement can be reached,

 In 2001, the California Supreme Court made it clear that there is an important policy behind these Evidence Code provisions. Citing both legislative history and a law review article, the court explained that the purpose of confidentiality is to promote a frank and candid exchange of views, both between the parties and between a party and the mediator, Foxgate Homeownem Ass’n, Inc. v. Bramalea Cal., Inc., 26 Cal. 4th 1, 9 (2001).  If the parties worry that a statement made or a document introduced at the mediation could be discoverable or admissible in a later proceeding, the goal of candor and frankness will be lost.  When a party seeks to invade mediation confidentiality, a court must consider whether its decisions in this area will encourage or thwart the clear policy underlying mediation confidentiality in California.

Section 1119 states, in relevant part

(a) 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.

Section 1119(b) extends the same rule to a writing that is “prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation.” Finally, Section 1119(c) broadly states that “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.” The last word of the section is not defined.

Evidence Code Section 703.5 provides that judges, arbitrators, and mediators are not competent to testify in any subsequent civil proceeding as to “any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding.” Exceptions are provided only for statements or conduct related to crimes, civil or criminal contempt, conduct that could give rise to lawyer disciplinary actions, or disqualification of the neutral. In other words, in most cases, statements made by parties at a mediation are inadmissible, and mediators themselves are not permitted to testify about what transpired during the mediation.

Section 1121 prohibits the mediator, or anyone else, from submitting to a court or adjudicative body any “report, assessment, evaluation, recommendation, or finding of any kind by the mediator.” The sole exception is a court-mandated report that states only whether an agreement was reached at the mediation.

CA EVIDENCE CODE SECTION 1115-1128

1115.  For purposes of this chapter:
   (a) "Mediation" means a process in which a neutral person or
persons facilitate communication between the disputants to
assist them in reaching a mutually acceptable agreement.
   (b) "Mediator" means a neutral person who conducts a 
mediation.
"Mediator" includes any person designated by a mediator either
to assist in the mediation or to communicate with the 
participants in preparation for a mediation.
   (c) "Mediation consultation" means a communication between a
person and a mediator for the purpose of initiating,considering, or
reconvening a mediation or retaining the mediator.

1116.  (a) Nothing in this chapter expands or limits a court's
authority to order participation in a dispute resolution
proceeding. Nothing in this chapter authorizes or affects the 
enforceability of a contract clause in which parties agree to
the use of mediation.
   (b) Nothing in this chapter makes admissible evidence that is
inadmissible under Section 1152 or any other statute.

1117.  (a) Except as provided in subdivision (b), this chapter
applies to a mediation as defined in Section 1115.
   (b) This chapter does not apply to either of the following:
   (1) A proceeding under Part 1 (commencing with Section 1800)
of Division 5 of the Family Code or Chapter 11 (commencing with
Section 3160) of Part 2 of Division 8 of the Family Code.
   (2) A settlement conference pursuant to Rule 3.1380 of the
California Rules of Court.

1118.  An oral agreement "in accordance with Section 1118" means an
oral agreement that satisfies all of the following conditions:
   (a) The oral agreement is recorded by a court reporter or 
reliable means of audio recording.
   (b) The terms of the oral agreement are recited on the record in
the presence of the parties and the mediator, and the parties 
express on the record that they agree to the terms recited.
   (c) The parties to the oral agreement expressly state on the
record that the agreement is enforceable or binding, or words 
to that effect.
   (d) The recording is reduced to writing and the writing is 
signed by the parties within 72 hours after it is recorded.

1119.  Except as otherwise provided in this chapter:
   (a) 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.
   (b) No writing, as defined in Section 250, that is prepared 
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 writing 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.
   (c) All communications, negotiations, or settlement 
discussions by and between participants in the course of a
mediation or a mediation consultation shall remain confidential.

1120.  (a) Evidence otherwise admissible or subject to discovery
outside of a mediation or a mediation consultation shall not be
or become inadmissible or protected from disclosure solely by 
reason of its introduction or use in a mediation or a mediation
 consultation.
   (b) This chapter does not limit any of the following:
   (1) The admissibility of an agreement to mediate a dispute.
   (2) The effect of an agreement not to take a default or an
agreement to extend the time within which to act or refrain from
acting in a pending civil action.
   (3) Disclosure of the mere fact that a mediator has served,
is serving, will serve, or was contacted about serving as a 
mediator in a dispute.

1121.  Neither a mediator nor anyone else may submit to a court 
or other adjudicative body, and a court or other adjudicative
body may not consider, any report, assessment, evaluation,
recommendation, or finding of any kind by the mediator 
concerning a mediation conducted by the mediator, other than a 
report that is mandated by court rule or other law and that
states only whether an agreement was reached, unless all parties 
to the mediation expressly agree otherwise in writing, or 
orally in accordance with Section 1118.

1122.  (a) A communication or a writing, as defined in Section
250, that is made or prepared for the purpose of, or in the
course of, or pursuant to, a mediation or a mediation
consultation, is not made inadmissible, or protected from
disclosure, by provisions of this chapter if either of the 
following conditions is satisfied:
   (1) All persons who conduct or otherwise participate in the
mediation expressly agree in writing, or orally in accordance
with section 1118, to disclosure of the communication, document, or
writing.
   (2) The communication, document, or writing was prepared by
or on behalf of fewer than all the mediation participants, 
those participants expressly agree in writing, or orally in 
accordance with Section 1118, to its disclosure, and the 
communication, document, or writing does not disclose anything 
said or done or any admission made in the course of the 
mediation.
   (b) For purposes of subdivision (a), if the neutral person
who conducts a mediation expressly agrees to disclosure, that 
agreement also binds any other person described in subdivision
(b) of Section 1115.

1123.  A written settlement agreement prepared in the course of, or
pursuant to, a mediation, is not made inadmissible, or protected from
disclosure, by provisions of this chapter if the agreement is 
signed by the settling parties and any of the following 
conditions are satisfied:
   (a) The agreement provides that it is admissible or subject to
disclosure, or words to that effect.
   (b) The agreement provides that it is enforceable or binding or
words to that effect.
   (c) All parties to the agreement expressly agree in writing, or
orally in accordance with Section 1118, to its disclosure.
   (d) The agreement is used to show fraud, duress, or illegality
that is relevant to an issue in dispute.

1124.  An oral agreement made in the course of, or pursuant to, a
mediation is not made inadmissible, or protected from disclosure, by
the provisions of this chapter if any of the following conditions are
satisfied:
   (a) The agreement is in accordance with Section 1118.
   (b) The agreement is in accordance with subdivisions (a), (b), and
(d) of Section 1118, and all parties to the agreement expressly
agree, in writing or orally in accordance with Section 1118, to
disclosure of the agreement.
   (c) The agreement is in accordance with subdivisions (a), (b), and
(d) of Section 1118, and the agreement is used to show fraud,
duress, or illegality that is relevant to an issue in dispute.

1125.  (a) For purposes of confidentiality under this chapter, a
mediation ends when any one of the following conditions is satisfied:
   (1) The parties execute a written settlement agreement that fully
resolves the dispute.
   (2) An oral agreement that fully resolves the dispute is reached
in accordance with Section 1118.
   (3) The mediator provides the mediation participants with a
writing signed by the mediator that states that the mediation is
terminated, or words to that effect, which shall be consistent with
Section 1121.
   (4) A party provides the mediator and the other mediation
participants with a writing stating that the mediation is terminated,
or words to that effect, which shall be consistent with Section
1121. In a mediation involving more than two parties, the mediation
may continue as to the remaining parties or be terminated in
accordance with this section.
   (5) For 10 calendar days, there is no communication between the
mediator and any of the parties to the mediation relating to the
dispute. The mediator and the parties may shorten or extend this time
by agreement.
   (b) For purposes of confidentiality under this chapter, if a
mediation partially resolves a dispute, mediation ends when either of
the following conditions is satisfied:
   (1) The parties execute a written settlement agreement that
partially resolves the dispute.
   (2) An oral agreement that partially resolves the dispute is
reached in accordance with Section 1118.
   (c) This section does not preclude a party from ending a mediation
without reaching an agreement. This section does not otherwise
affect the extent to which a party may terminate a mediation.

1126.  Anything said, any admission made, or any writing that is
inadmissible, protected from disclosure, and confidential under this
chapter before a mediation ends, shall remain inadmissible, protected
from disclosure, and confidential to the same extent after the
mediation ends.

1127.  If a person subpoenas or otherwise seeks to compel a mediator
to testify or produce a writing, as defined in Section 250, and the
court or other adjudicative body determines that the testimony or
writing is inadmissible under this chapter, or protected from
disclosure under this chapter, the court or adjudicative body making
the determination shall award reasonable attorney's fees and costs to
the mediator against the person seeking the testimony or writing.

1128.  Any reference to a mediation during any subsequent trial is
an irregularity in the proceedings of the trial for the purposes of
Section 657 of the Code of Civil Procedure. Any reference to a
mediation during any other subsequent noncriminal proceeding is
grounds for vacating or modifying the decision in that proceeding, in
whole or in part, and granting a new or further hearing on all or
part of the issues, if the reference materially affected the
substantial rights of the party requesting relief.
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