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October 15, 1999


The opinion of the court was delivered by: Brazil, United States Magistrate Judge.



The court addresses in this opinion several difficult issues about the relationship between a court-sponsored voluntary mediation and subsequent proceedings whose purpose is to determine whether the parties entered an enforceable agreement at the close of the mediation session.

As we explain below, the parties participated in a lengthy mediation that was hosted by this court's ADR Program Counsel — an employee of the court who is both a lawyer and an ADR professional. At the end of the mediation (after midnight), the parties signed a "Memorandum of Understanding" (MOU) that states that it is "intended as a binding document itself. . . ." Contending that the consent she apparently gave was not legally valid, plaintiff has taken the position that the MOU is not enforceable. She has not complied with its terms. Defendants have filed a motion to enforce the MOU as a binding contract.

One of the principal issues with which the court wrestles, below, is whether evidence about what occurred during the mediation proceedings, including testimony from the mediator, may be used to help resolve this dispute. Before we address the merits of these issues, we must decide whose law to apply (state or federal).

Because the pertinent background facts and the procedural setting are of some moment, we discuss them with some care in the first section. Then we turn to choice of law issues. After deciding whose law governs, we address some challenging procedural and substantive questions. Thereafter, we consider the record developed at the evidentiary hearing — to determine what the factual setting is in which we apply the law. With the factual setting defined, we are positioned to explain why we have decided to grant the defendants' motion and to enforce the settlement agreement.


The events in the real world out of which the current dispute arises began unfolding in 1992, when Ms. Olam applied for and received a loan from Congress Mortgage in the amount of $187,000. The 1992 loan is secured by two single-family homes located in San Francisco and owned by Ms. Olam. These properties are referred to as the "Athens Property" and the "Naples Property" because they are located on Athens Street and Naples Street, respectively.

Plaintiff states that she never read the 1992 loan documentation and that she simply signed where Congress Mortgage's agent told her to sign. See, Declaration of Donna Conlin Olam in Support of Her Memorandum Opposing Defendants' Motion to Compel Contract Arbitration, filed September 1, 1995.

Ms. Olam contends that she could not afford the monthly payments on the 1992 loan. Eventually she defaulted. Thereafter, Congress Mortgage initiated foreclosure proceedings on both the Athens and Naples Properties.

The purported May 1993 work-out agreement

Defendants allege that on May 21, 1993, plaintiff entered a work-out agreement pursuant to which, among other things, money earmarked for renovating the property was applied to the defaulted loan — in order to bring plaintiff's payments up to date. See, Exhibit D-1, admitted at August 23, 1999 evidentiary hearing.*fn1 Defendants further contend that, at the time she signed the May 1993 agreement, plaintiff was represented by an attorney, Carl Windell, who reviewed both the work-out agreement and the original 1992 loan documentation. Both plaintiff and Mr. Windell's signatures appear on the 1993 agreement. See, Ex. D-1

Plaintiff, in sharp contrast, asserts that Mr. Windell was not her attorney at that time. Instead, she says, Mr. Windell was "hired" by Robert Gaddis of Congress Mortgage to resolve a problem with a contractor and to review the original loan documentation. Plaintiff contends that Mr. Windell did not explain the 1993 workout agreement to her and that she did not understand it at the time she signed. See, August 28, 1998 Deposition of Donna Conlin Olam, filed August 23, 1999 at 395-410 (hereafter "Olam Depo."). Ms. Olam also alleges that she was under "extreme duress" at the time she signed the 1993 agreement and that she was coerced into signing it. See, Olam Depo., at 395-410; Transcript August 23, 1999 Evidentiary Hearing, WDB Tapes No. 1-3 (hereafter "E.H. Transcript").

Plaintiff again defaulted on her loan payments. In late 1993, Congress Mortgage notified plaintiff that it would again begin foreclosure proceedings on the properties.

The purported October 1994 "extension" agreement

According to defendants, the second foreclosure notice led to more negotiations between Ms. Olam and Congress Mortgage, negotiations that by October of 1994 had produced yet another written agreement. See, Exhibit D-2. Under its terms, Congress Mortgage would sell the Athens Street property, reduce the outstanding principal on the 1992 loan by the sale amount, and restructure Ms. Olam's remaining debt so that her monthly payments would be smaller. Defendants contend that in entering this agreement Ms. Olam was represented by attorney Paul H. Melbostad. Both Mr. Melbostad and Ms. Olam signed the October 1994 agreement. See, Ex. D-2.

Ms. Olam, however, contends that the October 1994 agreement — like the 1992 original loan documentation and the 1993 workout agreement — cannot be enforced because, among other things, she did not freely consent to it. She claims that at the time she signed the October 1994 agreement she was under economic duress, imposed by the impending foreclosures. See, Olam Depo., at 413-430. Ms. Olam also asserts that she did not read the October 1994 agreement, that Mr. Melbostad did not explain the agreement to her, and that she signed it only because he told her to do so.*fn2 See, Olam Depo., at 413-430; E.H. Transcript. At one point plaintiff contended that, due to incapacitating medical conditions, she was incapable of understanding the nature, purpose, and effect of the 1994 agreement. See, Plaintiff's Memorandum of Law Regarding Regulation Z; Plaintiff's Statement Re: Mediation, . . ., filed August 24, 1998. However, at her deposition, defense counsel asked plaintiff whether her medical incapacity contributed to the alleged duress she was experiencing at the time she signed the 1994 document — and plaintiff responded that it did not. See, Olam Depo., at 433:1-4.

It appears that defendants gave notice of a proposed sale of the Athens property in November 1994, but that an injunction prevented the sale process from going forward. That injunction was issued by a state court in which people (the Manns) who were trying to buy the Athens property from Ms. Olam had sued Ms. Olam and Congress Mortgage.

This lawsuit begins

Prior to plaintiff's jury demand, Congress Mortgage had moved the District Court to compel Ms. Olam to submit her dispute with Congress Mortgage to arbitration pursuant to terms set forth in the 1992 loan agreement. Plaintiff opposed that motion arguing, among other things, that the agreement to arbitrate was procured by fraud. See, Plaintiff's Memorandum in Opposition to Defendants' Motion to Compel Contract Arbitration, filed September, 1, 1995. She contended that she had not read the loan documents when she signed them in 1992 (at least in part because she did not have her reading glasses) and that Congress Mortgage had not told her about the arbitration clause. See, Declaration of Donna Conlin Olam in Support of Her Memorandum Opposing Defendants' Motion to Compel Contract Arbitration, filed September 1, 1995. Based on Ms. Olam's factual contentions, Judge Weigel denied the motion to compel arbitration. See, Order, filed November 6, 1995.*fn4

Plaintiff and her former counsel reviewed and discussed ADR options

In November 1995, plaintiff and her then-counsel, Carol Lundberg, certified that they had reviewed and discussed available court and private dispute resolution options. See, Certification of Discussion of ADR Options, filed November 16, 1995.

The case is reassigned and plaintiff changes counsel

On June 16, 1997, this case was randomly reassigned to District Judge Vaughn R. Walker. Sometime shortly thereafter, Phyllis Voisenat (then Phyllis Rafter) replaced Carol Lundberg as Ms. Olam's lawyer in this litigation. See, Civil Minute Order, filed August 1, 1997.

At an August 1, 1997, case management conference the parties consented to disposition by a magistrate judge. On August 11, 1997, this case was reassigned to me for all further proceedings.

Attempts to conduct settlement discussions fail

On December 5, 1997, at a status conference, the court asked plaintiff's counsel to discuss the possibility of mediation with her client. The court instructed Ms. Rafter that she was not to pressure the plaintiff to participate and that she was to inform plaintiff that she would not give up her right to go to trial by participating in mediation. Plaintiff subsequently agreed to participate in court-sponsored mediation.*fn5 See, Notice of Plaintiff's Consent to Mediation, filed December 10, 1997.

The court sets this case for trial

In early April of 1998 the court ordered trial of this case to begin on September 15, 1998.

The parties began filing pretrial submissions on July 30, 1998.*fn6 Some of plaintiff's submission were untimely. That fact triggered a motion by defendants to exclude certain evidence and an order by the court prohibiting plaintiff from introducing at trial any document that defendants had not disclosed — save for purposes of impeachment. See, Order Following August 11, 1998 Status Conference, filed August 11, 1998.

Shortly before trial the parties agree to try mediation

At the final pretrial conference on August 20, 1998, the court asked plaintiff's counsel whether there was any meaningful possibility that a mediation would be useful. Ms. Voisenat expressed hope in this regard. The court then encouraged the parties to consider one last try at mediation. I directed Ms. Voisenat to explain to Ms. Olam that if there was a mediation she would be expected to participate in good faith — but that "good faith participation" does not mean that Ms. Olam would have to "cave in" or agree to anything. I also asked counsel to make sure that Ms. Olam understood that if the mediation was unsuccessful the trial would proceed as scheduled.

Shortly thereafter, Ms. Olam, through her counsel, notified the court that she "consents to mediation in this case and agrees to participate in good faith, so long as 1) the mediation is conducted by a properly qualified mediator, familiar with truth in lending, mortgage and disclosure laws; 2) The mediation occurs in San Francisco at a convenient location and time; 3) The Mediation is conducted confidentially, such that all statements or writings submitted in furtherance of mediation, is [sic] submitted confidentially to the mediator, and/or such statements or writings are inadmissible in trial." See, Plaintiff's Memorandum of Law Regarding Regulation Z; Plaintiff's Statement Re: Mediation, . . ., filed August 24, 1998.

The parties schedule the mediation

On August 25, 1998, with the fully voluntary consent of the parties, the court referred this matter to mediation under the court-sponsored ADR program. Because so little time remained before trial was to commence it would have been virtually impossible to arrange for one of the private lawyers in the court's panel to serve as the mediator — so Howard Herman, one of the two extensively trained mediators who works on the court's staff, agreed to serve as the neutral.

The mediation was scheduled to begin on September 9, 1998, at 10:00 a.m. See, letter dated August 28, 1998 from Howard Herman to the parties' counsel, filed August 31, 1999. Mr. Herman asked counsel to review several matters prior to the mediation including the best and worst alternatives to a negotiated settlement and the strengths and weaknesses of the case. He also advised counsel that he would "keep the whole day available to allow the mediation to continue as long as it is being productive."

The September 9-10, 1998 mediation*fn7

Sometime around 10:00 p.m. Mr. Herman, Ms. Voisenat, and Mr. Stea retired to Mr. Herman's office to type up what they believed were the essential terms of a binding settlement agreement. See, E.H. Transcript. As previously mentioned, they called the document they drafted a "Memorandum of Understanding" (the "MOU"). It contemplated the subsequent preparation of a formal settlement contract but expressly declared that it was "intended as a binding document itself." See, Exhibit D-3. The essential terms of the purported settlement are clearly set forth in the typed MOU. At approximately 1:00 a.m., when the mediation concluded, Ms. Olam and her lawyer, and Messrs. Gaddis and Hulme and their lawyer, signed the MOU.

Following the conclusion of the mediation, Mr. Herman drove Ms. Voisenat and Ms. Olam to their homes.

Post-mediation confirmation of settlement by counsel

Later on September 10, 1998, Mr. Stea informed the court that the parties had settled the case. See, September 10, 1998 letter from Daniel Stea to the court's deputy clerk. About noon that day the parties' counsel appeared by telephone at a status conference called by the court. Both Mr. Stea and Ms. Voisenat confirmed on the record that the parties had settled the case by agreeing to all essential settlement terms and by committing those terms to a writing they had signed.*fn8 Because the case had settled, counsel asked the court to vacate the impending trial. See, Civil Minute Order and Notice, filed September 10, 1998; Transcript of September 10, 1998 hearing, WDB Tape NO. C98-062. The court informed the parties that the mediator, Mr. Herman, had called earlier that day to confirm that the parties had settled the case.*fn9

Plaintiff tries to communicate directly with the Court; problems surface

At approximately 1:45 p.m. on September 10, 1998, plaintiff telephoned my chambers. My staff informed her that I could not speak to her outside the presence of the other parties and counsel. She was referred to the mediator. See, Notice, filed September 10, 1998.

Having not received the formal settlement agreement and dismissal, the court held a status conference on December 2, 1998. Counsel informed the court that the document anticipated in the MOU had not yet been executed, but that Mr. Herman had generously offered to work with counsel to finalize the drafting and then to review the document with plaintiff to assure her that it accurately reflected the terms of the settlement reached at the mediation. See, Transcript of December 2, 1998 conference, WDB Tape No. C98-079. For reasons not clear to the court, these efforts failed to bear fruit. Plaintiff never signed the formal settlement contract anticipated in the MOU the parties signed on September 10, 1998.

Defendants file a motion to enforce the settlement

On April 21, 1999, more than seven months after the mediation, defendants filed a Motion to Enforce the Original Settlement . . . and to Enter Judgment Thereon (hereafter "Motion to Enforce").

On May 4, 1999, the court granted plaintiff's request to substitute Terrence P. Murphy for Phyllis Voisenat as her attorney of record.*fn10

On May 14, 1999, Ms. Olam, through her new attorney, filed her "Opposition" to the defendants' motion to enforce. Two separate grounds for the opposition were set forth. The first was that the MOU was unconscionable. We considered and rejected that contention in a separate order. Order Setting Status Conference, filed June 11, 1999. The second ground for opposition was that at the time she affixed her name to the MOU (at the end of the mediation) the plaintiff was incapable (intellectually, emotionally, and physically) of giving legally viable consent. Specifically, Ms. Olam contended that at the time she gave her apparent consent she was subjected to "undue influence" as that term is defined by California law. See, Plaintiff's Brief Concerning California Law Applicable to Purported Settlement Agreement, filed July 26, 1999; Plaintiff's Opposition to Motion to Enforce Settlement Agreement, filed May 14, 1999.

As we discuss in more detail infra, plaintiff alleges that at the time she signed the MOU she was suffering from physical pain and emotional distress that rendered her incapable of exercising her own free will. She alleges that after the mediation began during the morning of September 9, 1998, she was left alone in a room all day and into the early hours of September 10, 1998, while all the other mediation participants conversed in a nearby room. She claims that she did not understand the mediation process. In addition, she asserts that she felt pressured to sign the MOU — and that her physical and emotional distress rendered her unduly susceptible to this pressure. As a result, she says, she signed the MOU against her will and without reading and/or understanding its terms.*fn11

After receiving defendants' "Reply," we held a status conference to consider how to proceed. Persuaded by pertinent authorities*fn12 that the appropriate course was to hold an evidentiary hearing (to explore the factual bases for plaintiff's positions), we sought inputs from the parties about (1) whose law to apply (both to the substance of the enforcement issues and in resolving privilege questions) and (2) the extent to which it was appropriate to take testimony about what happened and what was said during the mediation.

After receiving additional papers from the parties addressing these matters, the court held another status conference on July 21, 1999. At that time counsel for plaintiff confirmed that plaintiff agreed to waive any attorney-client privilege that would attach between her and her former counsel, Phyllis Voisenat. See, Transcript of July 21, 1999 Status Conference, WDB Tape No. C99-061(a) and (b); Order re July 21, 1999 Status Conference and Civil Minute Order, filed July 23, 1999. Plaintiff also waived any "mediation privilege" that might attach to any and all communications made during the mediation.*fn13 Id. Defendants agreed to a limited waiver of their mediation privileges — so that testimony could be taken about both the mediator's and the defendants' interaction with plaintiff and her attorney during the mediation.

As we explain below, it is not at all clear that the waivers by the parties were sufficient to make it lawful to compel testimony from the mediator. But before we could resolve that question and others, we had to decide whose law to apply. So we turn to the choice of law issues in the next section.


When pressed to determine whose law to apply, it is important not to proceed in the abstract, but to ask: apply to what? In this case, there could be at least four different "whats" — i.e., four different matters about which a choice of law must be made. The first such "what" would be plaintiff's underlying claims — two of which sound in state law, one of which sounds in federal law (TILA). A second possible "what" is defendants' claim that the mediation produced an enforceable contract. A third subject about which a choice of law must be made is whether it is appropriate, in this setting, to consider evidence about what happened during the mediation: whose law determines whether — and to what extent — communications and conduct occurring during the mediation are protected from disclosure or subsequent evidentiary use? The fourth "what" about which choice of law questions might be raised is at least in part procedural: whose law should dictate what procedures a federal district court should use when determining whether to "admit" evidence to which a privilege that is based in state law attaches?

The first of the possible "whats" just described is not before the court at this juncture — we do not address here whether plaintiff could or should prevail on her underlying claims. We are required to grapple, however, with the remaining three subjects.

The issue that defendants' motion presses to center stage at this juncture is whether the parties entered an enforceable contract at the close of the mediation session. That is a question of contract law*fn14 — and there is no general federal law of contracts. Nor do the defendants purport to rely (in this motion) on any federal law, statutory or common. Rather, the rights that defendants assert are creatures entirely of state contract law. And plaintiff does not dispute that the source of the norms under which the contract issues that are raised by defendants' motion will be resolved is state law, here the law of the state of California. So when we turn, below, to consider whether defendants have proved that the parties entered an enforceable agreement at the end of the mediation, the rule of decision will be supplied by the substantive law of the state of California.

Before determining whether defendants have proved their substantive state law claim, however, it was necessary to resolve important issues that would affect what evidence could be adduced and considered in the evidentiary hearing. Most critically, we had to determine whether, to what extent, and through what procedures we may consider evidence about what occurred during the mediation. To whose law were we to look when resolving these questions? Plaintiff suggested that federal law should be the source of the norms that guide us in considering these matters. Defendants contended that we are bound to follow the law of the state of California.

In support of her argument, plaintiff pointed out that the federal district court's subject matter jurisdiction over the underlying claims is not based on diversity of citizenship (there is no such diversity), but on the fact that one of plaintiff's three claims arises under a federal statute (TILA). Jurisdiction over the state law claims is merely pendent — it exists only because there is some factual/evidentiary overlap between those causes of action and the claim that is based on the federal statute. At least in a setting like this, the rule in the 9th Circuit appears to be that privilege*fn15 issues that arise during litigation of the merits of the underlying claims are to be resolved by applying federal law — generally the federal common law of privilege (except where a federal statute expressly creates a privilege or imposes a duty of confidentiality). See, Federal Rule of Evidence ("F.R.E.") 501; Folb v. Motion Picture Industr. Pension & Health Plans, 16 F. Supp.2d 1164 (C.D.Cal. 1998) citing Religious Technology Center v. Wollersheim, 971 F.2d 364, n. 10 (9th Cir. 1992); Roberts v. Heim, 123 F.R.D. 614 (N.D.Cal. 1988).

Counsel for plaintiff contended that the parties must be presumed to have understood these legal principles and, therefore, presumed to have entered the mediation process expecting federal law to serve as the source of the protection of the confidentiality of the mediation proceedings. Plaintiff further argued that such expectations were reasonable and that it would be unfair not to honor them.

In support of that contention, plaintiff emphasized that the mediation took place expressly under the auspices of this court's ADR program — and that there has been in effect in this court for a good many years a local rule that purports to fix the terms under which mediation confidences will be protected. ADR Local Rules for the U.S. District Court for the Northern District of California, ADR-L.R. 6-11.*fn16

Plaintiff also might have pointed out that in the fall of 1998, less than two months after the mediation in issue here occurred, Congress enacted and the President signed into law the Alternative Dispute Resolution Act of 1998 — an Act which includes an express statement of federal policy that communications occurring in mediations sponsored by federal district courts should be confidential. In § 652(d) of the Act, Congress directed each federal district court (until national rules are adopted under 28 U.S.C. § 2071 — a process not likely to be completed for years) to "provide [through duly adopted local rules] for the confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications." 28 U.S.C. § 652(d). While this Act had not yet become law at the time the mediation in this case occurred, it became law well before defendants' filed their motion to enforce the settlement agreement — and plaintiffs might argue that local rules sanctioned by this statute should control disposition of disputes that arise after the statute's effective date (October 30, 1998).

The core problem in plaintiff's approach is that it ignores the express provision of Federal Rule of Evidence 501 that appears to be applicable here. That provision, which was self-consciously crafted by Congress itself (rather than by a committee of the Judicial Conference), directs that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness . . . shall be determined in accordance with State law." Defendants' motion to enforce the settlement agreement is a civil proceeding in which state law, and only state law, provides the rule of decision. The only question that motion raises is whether the parties entered an enforceable contract at the conclusion of the mediation — and the rule of decision for resolving this one substantive question will have only one source — the substantive law of the state of California.

Given these undisputed and foreseeable circumstances, the parties should have understood, before their mediation, that if, later, one party initiated proceedings designed to secure a determination that the mediation produced an enforceable settlement contract, disputes about the confidentiality of mediation communications would be resolved in those proceedings by applying the law of the state of California. Because the parties should have foreseen the applicability of state privilege law in a proceeding like this,*fn17 any contrary expectation they had in fact was unreasonable — and it would not be unfair not to honor it.

It also is pertinent to the fairness argument that California has offered for some time a set of strong statutory protections for mediation communications (we discuss these below). If anything, those state law protections might be stronger than the protections offered through the relevant local rule of the Northern District of California or through any federal common law mediation privilege that might have been emerging when the mediation took place in this case. Folb, 16 F. Supp.2d 1164. Thus plaintiff could not argue persuasively that she was misled to her detriment by relying on the Northern District's local confidentiality rule, or on a federal common law mediation privilege. Such an argument would have moral force only if the state whose law would apply the rule of decision offered much less (or no) protection to mediation communications.

Independent of her fairness arguments, plaintiff might contend that when it adopted § 652(d) of the ADR Act of 1998 Congress intended to super-impose a modest limitation on what otherwise would be the reach of Rule 501. Plaintiff's argument might proceed along the following lines. By enacting § 652(d) Congress evidenced its view that there is a strong federal interest in protecting the confidentiality of communications that occur in mediations sponsored by federal district courts. Citing the 1974 Advisory Committee Notes to F.R.E. 501, plaintiff might proceed by arguing that the "rationale underlying the proviso [that federal courts must apply state privilege law when the evidence is relevant to a claim that would be resolved by state law] is that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason." (Emphasis added.) At the time F.R.E. 501 was adopted (1974-75), Congress felt that "there was no federal interest strong enough to justify departure from State [privilege] policy" when, in a civil case in federal court, state law provided the rule of decision. But, the argument would go, times have changed dramatically since 1975, especially in the growth and legitimization of court-connected ADR, so that by 1998 Congress had determined that a strong federal interest did exist in protecting the confidentiality of communications made during mediations sponsored by federal district courts. By ordering district courts to adopt rules that would "prohibit disclosure of confidential dispute resolution communications," Congress articulated a strong national policy on this question — a policy that Congress would not want frustrated by state legislatures that did not share Congress's view about the importance of confidentiality in court-sponsored ADR proceedings.

The central difficulty with this line of argument is that, to my less than comprehensive knowledge, it is supported by nothing in either the language or the legislative history of the ADR Act. We are constrained to assume that the Congress that enacted this statute was well aware of F.R.E. 501. We also are constrained to assume that Congress knew that the current version of F.R.E. 501 was the product of heated debate and considerable self-consciousness — and that the proviso in question here reflected an important Congressional judgment about where to strike the balance between competing state and federal interests in this sensitive arena. Moreover, the balance that Congress struck left matters of considerable potential consequence to the outcome of litigation in federal courts vulnerable to compromise or erosion by state law (when state law supplied the rule of decision) — e.g., whether communications between a lawyer and client were privileged at all. Congress obviously knew, in 1975, that under federal law there were strong protections for confidential attorney-client communications. Despite knowing that, Congress decided that it could and should live with the possibility that such communications would receive no protection at all in a civil action in federal court when a state law provided the substantive rule of decision.

One point of all this is that the proviso in F.R.E. 501 was in 1975 and remains today a big deal — and because it is a big deal, we should assume that Congress would change it only after a visible public debate and only through a direct and unequivocal pronouncement. We should not base a finding that there has been a change in a rule of such significance on inferences about intersections of law that there is no evidence Congress saw.

Given the relative paucity of public debate surrounding the ADR Act, it is considerably more likely than not that Congress devoted no thought at all to the possible ...

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