Resurrection of mediator recommendations disguised as CCRC proposals.

Certain Departments are once again rubber-stamping mediator recommendations without an adversarial hearing if there is no agreement. The mediator recommendations are referred to as CCRC orders and recommendations to disguise the fact that they are in fact MEDIATOR recommendations and originate as a product of mediation.

Litigants get the fact that a judge wants a piece of paper telling him/her what to do, especially with the volume of cases that swamp the court, but legally unless there is an agreement between the parties the CA evidence code still allows parties to object to these “recommendations” which are a PRODUCT of mediation.

Riverside Superior Court local rules of court also suggests that no mediation recommendation shall be adopted unless there is an agreement between the parties.

RULE 5155
CHILD CUSTODY RECOMMENDING COUNSELING OF CUSTODY AND VISITATION
A. Parties requiring child custody recommending counseling of custody/visitation issues
will be assigned an appointment time/date prior to the court date and shall complete
one counseling appointment prior to the court date.
B. Testimony of Child Custody Recommending Counselor. Child Custody
Recommending Counselors are employees of the Court. All subpoenas for Child
Custody Recommending Counselor testimony shall comply with the Government
Code.
C. Disclosure. Parties are to fully disclose information to the Child Custody
Recommending Counselor. Any documents brought to the appointment must be
served on the other party prior to the Child Custody Recommending Counselor’s
review.
D. Appearances. Parties must personally appear at the child custody recommending
counseling appointment. Either party seeking to appear at the appointment by
telephone must obtain prior approval from the Assistant Deputy Executive Officer of
Mediation Services.
If a telephonic appearance is approved, it is the party’s responsibility to contact
Family Court Services the day prior to the appointment and provide a telephone
number at which he or she can be contacted. On the day/time of the Child Custody
Recommending Counseling appointment, the court will contact the party at the
number provided.
Children shall not be interviewed telephonically unless approved by the Assistant
Deputy Executive Officer of Mediation Services.
E. Confidentiality. Child Custody Recommending Counseling is confidential only to the
extent that disclosure of the information received is limited to those who have the
right to know. Confidentiality is important to promote full and free disclosure of
information necessary for settlement. It exists with regard to information divulged
among the Child Custody Recommending Counselor, the parties, and attorneys;
therefore, each must cooperate in this regard and not disclose confidential
information to outsiders. This confidentiality will not preclude the Child Custody
Recommending Counselor from making a recommendation to the Court if the parties
fail to reach an agreement.
F. Agreements. The Child Custody Recommending Counselor shall prepare a written
agreement and proposed order. Persons present shall sign the agreement unless
represented by counsel.
G. Proposed Order. Where the Child Custody Recommending Counselor concludes
that the parties are near agreement, or that certain disposition is presently
appropriate, the Child Custody Recommending Counselor will submit a proposed
order to the Court.
H. Adoption of Proposed Order. Upon review and if appropriate, the Court will sign the
proposed order.
I. Mandatory Parent Orientation On-Line Class. Parents shall complete an on-line
Parent Orientation Class when custody and/or visitation is raised as an issue for the
first time in the case. Both parties must bring a copy of the certificate of completion
from the on-line class to the child custody recommending counseling appointment.
The Court may order parents to complete the on-line class at any time at the Court’s
discretion.
J. Child Custody Recommending Counseling Complaint and Request for Change
Procedures
1. The purpose of this section is to establish a procedure for addressing complaints
against Child Custody Recommending Counselors, and for requesting a change of a
Child Custody Recommending Counselor. This section is intended to help the court
promptly resolve any complaints or requests in a manner that is respectful and fair to
the parties and the Child Custody Recommending Counselor.
2. The Assistant Deputy Executive Officer of Mediation Services shall be the
coordinator for addressing complaints or requests for change.
3. Any complaints against the Child Custody Recommending Counselor must be
submitted in writing to the Assistant Deputy Executive Officer of Mediation Services
within ten (10) days of the child custody recommending counseling appointment.
Complaints may be made on local form RI-FL015.
4. Any requests to change the Child Custody Recommending Counselor must be
submitted in writing to the Assistant Deputy Executive Officer of Mediation Services
a minimum of seven (7) calendar days prior to the appointment. Requests for
change may be made on local form RI-FL015.
5. The Assistant Deputy Executive Officer of Mediation Services will conduct a
preliminary review of all complaints to determine whether the complaint can be
informally resolved or closed, or whether the complaint warrants further
investigation. Written notice of the outcome of the preliminary review will be sent to
complainant within thirty (30) days of receipt of the complaint.
6. If the matter is not resolved or closed after preliminary review, the complaint will
be investigated by a Deputy Executive Officer. The Deputy Executive Officer will
issue a final decision as to what action, if any, will be taken and complainant will be
notified in writing.
7. All complaint procedures and proceedings must be designed and conducted in a
manner that preserves the confidentiality of mediation communications. All complaint
proceedings must occur in private and must be kept confidential. Unless otherwise
required by law, all records and information concerning the child custody
recommending counseling shall remain confidential and not subject to inspection by
the public.
8. The Assistant Deputy Executive Officer of Mediation Services will review all
requests for change of the Child Custody Recommending Counselor prior to the
scheduled appointment. The requesting party will be notified of the decision verbally
prior to the scheduled appointment.
References:
Government Code 68097, 68097.1 and 68097.2
Family Code 3160 through 3188
California Rules of Court, rule 5.210

Numerous Supreme Court decisions including family law cases have specified that mediation confidentiality is absolute which includes any product originating out of mediation unless there is an agreement in writing or at the hearing (CA evidence code section 1118, 1121) or settlement agreement (CA evidence code section 1123) the only narrowly defined statutory exceptions.

The term CCRC (child custody recommendation counselor) was coined by the Judicial Council but the family law statute still views CCRCs as MEDIATORS.

California Family Code Section 3183
(a) Except as provided in Section 3188, the mediator may,
consistent with local court rules, submit a recommendation to
the court as to the custody of or visitation with the child, if
the mediator has first provided the parties and their
attorneys, including counsel for any minor children, with the
recommendations in writing in advance of the hearing. The court
shall make an inquiry at the hearing as to whether the parties
and their attorneys have received the recommendations in
writing. If the mediator is authorized to submit a
recommendation to the court pursuant to this subdivision, the
mediation and recommendation process shall be referred to as
“child custody recommending counseling” and the mediator shall
be referred to as a “child custody recommending counselor.”
Mediators who make those recommendations are considered
mediators for purposes of Chapter 11 (commencing with Section
3160), and shall be subject to all requirements for mediators
for all purposes under this code and the California Rules of
Court. On and after January 1, 2012, all court communications
and information regarding the child custody recommending
counseling process shall reflect the change in the name of the
process and the name of the providers.
(b) If the parties have not reached agreement as a result of
the mediation proceedings, the mediator may recommend to the
court that an investigation be conducted pursuant to Chapter 6
(commencing with Section 3110)or that other services be offered
to assist the parties to effect a resolution of the controversy
before a hearing on the issues.
(c) In appropriate cases, the mediator may recommend that
restraining orders be issued, pending determination of the
controversy, to protect the well-being of the child involved in
the controversy.

The CA evidence code that relates to mediation specifically states:

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.

Precedent cases include In Cassel v. Courier Superior Court, 51 Cal.4th 113, 244 P. 3d 1080 (January 13, 2011), where the client brought an action against attorneys who represented him in a mediation in a malpractice, breach of fiduciary duty, fraud, and breach of contract action.

At trial the attorneys made a motion in limine using the statute relating to mediation confidentiality (Cal. Evid. Code §1119(a), (b)) to exclude all evidence of communications between the client and the lawyer that were related to the mediation, including what was discussed in pre-mediation meetings and private communications between the client and attorneys during the mediation. The Supreme Court once again ruled that mediation confidentiality is absolute, following similar rulings already defined in Foxgate Homeowners Association, Inc., v. Bramalea California, Inc. (July 9, 2001) 26 Cal.4th 1, where the Supreme Court took a surprisingly strong stand on behalf of mediation confidentiality. In a 6-0 decision, it concluded that there were “no exceptions” to the confidentiality of mediation communications under Evidence Code §1119, or to the statutory limits on reporting by a mediator under Evidence Code § 1121.

In re Marriage of Daly and Oyster (2014) 228 Cal.App.4th 505, the Second Appellate District, Division one published an opinion citing that settlement agreements are not included in the mediation confidentiality pursuant to CA evidence code section 1119 as there is a statutory exception.

“Oyster first contends the 2006 stipulated judgment could not be admitted into evidence in the 2011 dissolution proceedings because it resulted from mediation, and was thus confidential pursuant to Evidence Code section 1119. We disagree. With limited exceptions, no evidence of anything said and no writing prepared in the course of a mediation is admissible in any civil action. (Evid. Code, § 1119, subds. (a) & (b).)

One exception concerns written settlement agreements. A written settlement agreement prepared in the course of a mediation is not made inadmissible by Evidence Code section 1119 if the agreement is signed by the settling parties and “[t]he agreement provides that it is admissible or subject to disclosure, or words to that effect,” or “[t]he agreement provides that it is enforceable or binding or words to that effect.” (Evid. Code, § 1123, subds. (a) & (b), italics added.)

Evidence Code section 1119 thus states the general rule that writings prepared in the course of mediation are inadmissible, “[e]xcept as otherwise provided in this chapter.” Section 1123 states the exceptions applicable to written settlement agreements, including the requirements at issue here: The agreement provides that it is admissible or subject to disclosure or that it is enforceable or binding, or words to that effect. (Evid. Code, § 1123, subds. (a) & (b); Fair v. Bakhtiari (2006) 40 Cal.4th 189, 195-196.) The “words to that effect” clause “reflects a legislative concern not with the precise words of a settlement agreement, but with terms unambiguously signifying the parties’ intent” to disclose the agreement or be bound by it. (Fair v. Bakhtiari, supra, 40 Cal.4th at p. 197.) The phrase “refers to language that conveys a general meaning or import.” (Ibid.) Under Evidence Code section 1123, “the use of such language will exempt a written settlement agreement from the general rule that documents prepared during mediation are inadmissible in future proceedings. The Legislature’s goal was to allow parties to express their intent to be bound in words they were likely to use, rather than requiring a legalistic formulation. The Legislature also meant to clarify the rules governing admissibility and reduce the likelihood that parties would overlook those rules. To meet these objectives, we must balance the requirements of flexibility and clarity, without eroding the confidentiality that is ‘essential to effective mediation.’ [Citations.]” (Fair v. Bakhtiari, supra, at p. 197.) To satisfy the “words to that effect” provision of subdivision (a) or (b) of section 1123, a writing must directly express the parties’ agreement to disclose or be bound by the document they sign. (Fair v. Bakhtiari, at p. 197; see Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1578.)”

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s