The Erie Doctrine states that a federal court that negotiates a case based on diversity justice applies the substantive law of the state in which it has its seat. The confidentiality of mediation is governed by the California Rules of Evidence, but courts differ as to whether the rules of evidence are substantive or procedural. For example, attorneys hoping to enforce California`s mediation confidentiality law might consider clarifying that California law applies to the underlying dispute and even its relationship to that dispute. Secondly, it is part of both the content of the subsequent dispute and a contract negotiated by the parties – not one of the responsibilities that are submitted to the parties by a person who is not a party to the dispute. I guess that door is already open. Practically, the confidentiality of mediation is not the absolute that people believe. Despite five decisions of the California Supreme Court and several decisions of the California Court of Appeals, which rule that mediation is sacrosanct, in some cases, mediation communiqués are considered by the courts to impose settlement agreements, obtain contributions from common releasers or indemnitees and contract insurers, make comparisons and much more. In other cases, California courts refuse to allow the disclosure of mediation as evidence. The following is a discussion of the trend in the ninth circle and how lawyers want to change your approach to these mediation trust agreements. I hope that these cases, these statutes and some ongoing uncertainties about the direction of the law will prompt you to think about what you can do to draft your mediation agreement to preserve confidentiality, such as: lawyers often argue over whether they should arbitrate, when to mediate and who should mediate. They spend less time reviewing the content of their “mediation trust agreement.” This may be a big mistake. What for? Depending on where you transmit and what you transmit, the rules differ, with different consequences and perhaps some unpleasant surprises.
The parties voluntarily engage in mediation. The parties understand that the mediation may be interrupted at any time by one of the parties or by the mediators. Remember that all participants in the mediation will sign the agreement so that they can participate. It may not be realistic to expect that those involved in mediation will be able to bind participating companies to mediation secrecy, the choice of law in the event of a dispute over the mediation agreement, and the selection of the forum. . . .