ON MEDIATOR ETHICS

ABA Model Standards of Conduct for Mediators

ON CALIFORNIA RULES ABOUT MEDIATION CONFIDENTIALITY

Important California Statutes on Mediation Confidentiality
California Evidence Code Section 1115 thru 1128
California Evidence Code Section 703.5
California Code of Civil Procedure Section 1775.10

California Supreme Court Cases on Mediation Confidentiality
Foxgate Homeowners Association, Inc., v. Bramalea California, Inc. (July 9, 2001) 26 Cal.4th
Rojas v. Superior Court, 33 Cal. 4th 407
Fair v. Bakhtiari, 51 Cal. Rptr. 3d 871 (2006)
Cassel v. Superior Court, 51 Cal. 4th 113 (2011)

ON CONTRACTS DISALLOWING ATTORNEY FEES TO A PREVAILING PARTY WHO DOES NOT ATTEMPT MEDIATION BEFORE SUING IN CALIFORNIA

California Courts enforce contracts denying Attorney's fees to prevailing Plaintiffs that file suit before offering to Mediate.
Lange v. Schilling (2008) 163 Cal.App.4th 1412
Johnson v. Siegel (2000) 84 Cal.App.4th 1087
Even a prevailing Plaintiff that shows a contract is unenforceable, can win Attorney Fees if they offer to mediate before suing. Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424
But some exceptions may apply, e.g., see
Blackburn v Charnley (2004) 117 Cal.App.4th 758
Also, prevailing Defendants thatrefuse Plaintiff's offer to Mediate will be denied attorney fees
Frei v. Davey (2004) 124 Cal.App.4th 1506
Cullen v. Corwin (2012) 206 Cal. App.4th 1074
A telephone offer to mediate from a prevailing Defendant is sufficient to support an award of attorney fees
Van Slyke v. Gibson (2007) 146 Cal.App.4th 1296
But, a prevailing Defendant that never proposed mediation does not lose his rights to attorney's fees if Plaintiff never asks for mediation!
Johnson v. Siegel (2000) 84 Cal.App.4th 1087