(Super. Ct. No. 56-2008-00318830-PR-TR-VTA) (Ventura County). Kent Kellegrew, Judge.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
Mediators facilitate settlement of legal disputes. They use a variety of techniques to achieve that goal which include listening, enlightening, suggesting, empathizing and, sometimes, cajoling. But once the mediation is concluded, the mediator may not offer clarification concerning the mediation or a disputed settlement unless the parties agree otherwise. Like an actor whose concluding scene occurs in Act 2, the mediator may not re-enter the stage to play a part in Act 3.
The parties here signed a settlement agreement during a mediation. One party brought a motion to enforce the agreement pursuant to Code of Civil Procedure section 664.6. The first page of the agreement contains a waiver of mediation confidentiality. A question arose whether the first page was part of the agreement. The trial court found it was and granted the motion to enforce the settlement.
We conclude the trial court erred in admitting the mediator's declaration into evidence, but that the error was harmless. We affirm.
Suzanne C. Radford and Melinda Shehorn are sisters and beneficiaries of a trust established by their parents. Their father died in 2006 and their mother died in 2007, leaving Shehorn sole trustee.
In 2008, Radford filed a petition in probate court challenging Shehorn's distribution of trust assets. The trial court ordered the parties to mediate and they selected Retired Judge, Joe D. Hadden, as the mediator. The parties attended the mediation with their attorneys.
The mediation ended with a settlement agreement consisting of two pages. The first page was a printed form provided by Hadden. The printed form provides that plaintiff shall execute a release of all known and unknown claims. The form also provides in part: "This Settlement Agreement is binding on the parties pursuant to [Code of Civil Procedure] § 664.6 or comparable Federal Statutes and is admissible in court as set forth in Evidence Code § 1123 and/or the applicable Federal Rules." The page has "Page 1 of 2" handwritten on the bottom. The page was signed by Shehorn and her attorney, but not by Radford or her attorney.
The second page of the agreement is entitled "Settlement Agreement," and contains the substantive terms of the settlement. It is entirely handwritten, and signed by both parties and their attorneys. The agreement requires the parties to execute mutual releases but, unlike the first page, does not specify that the release includes unknown claims. The second page has "Page 2 of 2" handwritten at the bottom.
The day before the parties were to report the results of the mediation to the trial court, a new attorney retained by Radford informed Shehorn's attorney that Radford was not bound by the agreement. Shehorn filed a motion to enforce the settlement pursuant to Code of Civil Procedure section 664.6.
In support of the motion, Shehorn's attorney, David Edsall, submitted an affidavit. Edsall declared that Radford reviewed the settlement agreement with her attorney. After consulting with her attorney, Radford signed and dated page 2 in the presence of her attorney and Hadden. Shehorn declared that the two-page settlement agreement was prepared at the time of the mediation, and that she signed page 2.
Radford submitted her affidavit in opposition to the motion. She declared that neither she nor her attorney signed the first page of the agreement. She signed the second page but at the time she signed it, the words "Page 2 of 2" were not there. She did not receive a copy of the first page until about a week later when she asked the attorney who represented her in the mediation, Robert Baskin, to send her a copy of what she signed. It was her understanding that there would be no settlement until a final typewritten settlement agreement was signed by the parties.
In response, Shehorn's attorney, Edsall, submitted another affidavit. He declared tha he wrote "Page 1 of 1" at the bottom of the first page. He drafted the second page and wrote "Page 2 of 2" at the bottom. Radford's attorney made some modifications on page 2. Thereafter, the parties and their attorneys signed page 2 in the presence of Hadden. After the parties signed the ...