Fair v. Bakhtiari

Opinion

Documents prepared for purposes of mediation are generally inadmissible in civil proceedings. (Evid. Code, § 1119, subd. (b).) However, a signed settlement agreement reached through mediation is exempt from this general rule if it “provides that it is enforceable or binding or words *192to that effect.” (Evid. Code, § 1123, subd. (b) (section 1123(b)).)1 This case turns on whether the document at issue satisfies the requirements of section 1123(b).

The parties concluded a mediation session by signing a handwritten single-page memorandum captioned “Settlement Terms.” The final provision stated: “Any and all disputes subject to JAMS [(Judicial Arbitration and Mediation Services)] arbitration rules.” The trial court found this “term sheet” inadmissible, and denied a motion to compel arbitration. The Court of Appeal reversed, holding that the memorandum was admissible because the arbitration provision constituted “words to [the] effect” that the settlement terms were “enforceable or binding” under section 1123(b).

The Court of Appeal gave section 1123(b) an unduly expansive reading. The aim of the provision is to allow parties in mediation to draft enforceable agreements without requiring the use of a formulaic phrase. However, the writing must make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement. The writing need not be in finished form to be admissible under section 1123(b), but it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding. For reasons we explain below, the arbitration clause in the memorandum before us fails to satisfy this standard.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff R. Thomas Fair sued Karl E. Bakhtiari, Maryanne E. Fair, and various business entities (we refer to the businesses as the Stonesfair defendants). Bakhtiari was plaintiff’s former business partner and Ms. Fair his former wife. Plaintiff alleged that they had wrongfully excluded him from real estate syndications, denied him compensation, misappropriated profits, and engaged in other financial misconduct. Plaintiff also accused Bakhtiari of physically assaulting him on more than one occasion.

Bakhtiari, Ms. Fair, and the Stonesfair defendants answered separately, and the parties mediated their disputes over the course of two days. At the end of the second day, plaintiff’s counsel drafted a handwritten memorandum recording settlement terms, as set forth below.2 The memorandum was dated March 21, 2002, and signed by the mediator and the parties.

*193The parties filed case management reports informing the court that the case had settled in mediation. On April 4, counsel for the Stonesfair defendants circulated a formalized settlement and release agreement, confirming the parties’ intent to settle all their disputes “as of and effective March 21, 2002.” A few days before the case management conference, counsel for the Stones-fair defendants learned from plaintiff’s counsel that plaintiff believed the parties’ agreement for the transfer of his assets did not apply to certain business interests. The attorneys also discussed unresolved tax issues. Counsel for all parties appeared at the case management conference, where Bakhtiari’s attorney requested a continuance. He told the court: “We’ve reached a settlement agreement. We are now in the process of exchanging settlement agreements. And there are some complicated taxation matters involved.” The trial court granted the continuance.

The parties were unable to finalize their settlement. On June 6, 2002, one of the attorneys for the Stonesfair defendants substituted as counsel for all defendants, and filed a case management document informing the court that the parties “were ultimately unable to reach agreement as to the scope and subject matter of the proposed settlement terms.” He suggested the case “should be resolved through the regular court process.”

On June 10, plaintiff’s attorney wrote to defendants’ counsel, demanding arbitration under paragraph 9 of the settlement memorandum. (See fn. 2, ante, pp. 192-193.) Defendants’ counsel rejected the demand, contending the parties had not entered an enforceable agreement. He claimed the settlement memorandum was inadmissible under section 1119, subdivision (b), which protects the confidentiality of writings “prepared for the purpose of, in the course of, or pursuant to, a mediation.”

Plaintiff moved to compel arbitration, contending the parties had agreed to be bound when they signed the March 21 memorandum, and thus any disputes over the meaning or extent of their agreement were subject to *194arbitration. Plaintiff noted that counsel for all defendants had told the court the case had settled. Defendants opposed the motion. They objected to the admission of the settlement memorandum and parts of opposing counsel’s declarations reciting mediation discussions. In reply, plaintiff contended the March 21 memorandum was admissible on various grounds, including that the presence of an arbitration provision made the parties’ agreement “enforceable” as contemplated by section 1123(b).

The trial court excluded the memorandum and the portions of the declaration by plaintiff’s counsel describing the settlement reached in mediation. The court found that the requirements of section 1123 were not met, and concluded “[t]here is insufficient demonstration of an arbitration agreement given the inadmissibility of the term sheet.” Accordingly, the court denied the motion to compel arbitration.

The Court of Appeal reversed, deciding that the provision “[a]ny and all disputes subject to JAMS arbitration rules” could only mean the parties intended the settlement terms document to be “enforceable or binding.” Therefore, the court held that the memorandum included “words to that effect” and was admissible under section 1123(b). The court also determined that the memorandum reflected a valid arbitration agreement. We granted defendants’ petition for review.

II. DISCUSSION

We have repeatedly noted that the mediation confidentiality provisions of the Evidence Code were enacted to encourage mediation by permitting the parties to frankly exchange views, without fear that disclosures might be used against them in later proceedings. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 415-416 [15 Cal.Rptr.3d 643, 93 P.3d 260]; Foxgate Homeowners Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 14 [108 Cal.Rptr.2d 642, 25 P.3d 1117].) Toward that end, “the statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” (Foxgate Homeowners’ Assn., at p. 15, fn. omitted; see Rojas, at p. 416.) In Foxgate and Rojas we disapproved “judicially crafted exception[s]” to the mediation confidentiality statutes. (Foxgate Homeowners’ Assn., at p. 14; see Rojas, at p. 424, quoting Foxgate.) In this case we construe the exception expressly provided in section 1123(b) for written settlement agreements.

Section 1123(b) was added in 1997, as one of many statutory mediation reforms recommended by the California Law Revision Commission (Commission). (Stats. 1997, ch. 772, § 3; see Recommendation on Mediation Confidentiality (Jan. 1997) 26 Cal. Law Revision Com. Rep. (1996) p. 407.) *195The Commission’s 1997 recommendation includes an introductory letter to the Governor stating that its revisions were intended “to eliminate ambiguities. In particular, the Commission recommends clarifying the application of mediation confidentiality to settlements reached through mediation. Clarification is critical to aid disputants in crafting agreements they can enforce.” (Recommendation on Mediation Confidentiality, supra, 26 Cal. Law Revision Com. Rep., at p. 409; see also p. 414.) In its recommendation, the Commission observed: “These recommended reforms on achieving an effective settlement are the most crucial element of the Commission’s recommendation. They should enhance the effectiveness of mediation in promoting durable settlements.” (Id. at p. 424.) The Commission’s official comments are deemed to express the Legislature’s intent. (Rojas v. Superior Court, supra, 33 Cal.4th at p. 418, fn. 6.)

The Commission noted that a predecessor statute, former section 1152.5, “fails to highlight a critical requirement concerning written settlement agreements reached, through mediation. Under Section 1152.5(a)(2), unless it is offered to prove fraud, duress, or illegality, a written settlement agreement is admissible only if it so provides. [Fn. omitted.] Parties overlooking this requirement may inadvertently enter into a written settlement agreement that is unenforceable because it is inadmissible.”3 (Recommendation on Mediation Confidentiality, supra, 26 Cal. Law Revision Com. Rep., at p. 422.)

The Commission proposed to remedy this problem by addressing the admissibility of settlement agreements in a separate section. “This will draw attention to the requirements and decrease the likelihood that disputants will inadvertently enter into an unenforceable agreement.” (Recommendation on Mediation Confidentiality, supra, 26 Cal. Law Revision Com. Rep., at p. 422.) Accordingly, mediation confidentiality and the disclosure of settlement agreements are now treated in separate provisions. Section 1119 states the general rule that writings prepared for, in the course of, or pursuant to *196mediation are inadmissible, “[e]xcept as otherwise provided in this chapter.”4 Section 1123 states the exceptions applicable to written settlement agreements, including the requirement at issue here: “The agreement provides that it is enforceable or binding or words to that effect.” (§ 1123(b).)5 The Commission explained: “[t]he proposed section on settlements would explicitly make an executed written settlement agreement admissible if it provides that it is ‘enforceable’ or ‘binding’ or words to that effect. Because parties intending to be bound are likely to use words to that effect, rather than stating that their agreement is ‘admissible,’ the Commission regards this as an important addition.” (Recommendation on Mediation Confidentiality, supra, 26 Cal. Law Revision Com. Rep., at p. 423; see also Cal. Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code (2006 supp.) foll. § 1123, p. 214.)6

*197The Court of Appeal correctly reasoned that 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 be bound. The court erred, however, by concluding that the inclusion of an arbitration clause in the parties’ list of settlement terms satisfied section 1123(b), on the ground that the clause could only reflect an intent that the document would be “enforceable or binding.” Although the Legislature did not provide the courts with a bright line when it permitted the admission of signed agreements including “words to that effect,” we conclude a narrower interpretation of this clause is required. We are guided by the ordinary meaning of the statutory language, its context, and the legislative purposes it was meant to serve. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715 [3 Cal.Rptr.3d 623, 74 P.3d 726]; see also Rojas v. Superior Court, supra, 33 Cal.4th at p. 422.)

The phrase “words to that effect” in section 1123(b) refers to language that conveys a general meaning or import, in this instance the meanings of “enforceable or binding.” (American Heritage Diet. (4th ed. 2000) p. 570.) Under section 1123(b), 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.” (Foxgate Homeowners’ Assn. v. Bramalea California, Inc., supra, 26 Cal.4th at p. 14; see Rojas v. Superior Court, supra, 33 Cal.4th at p. 415.)

In order to preserve the confidentiality required to protect the mediation process and provide clear drafting guidelines, we hold that to satisfy the “words to that effect” provision of section 1123(b), a writing must directly express the parties’ agreement to be bound by the document they sign. Plaintiff would have us infer the parties’ intent from the mention of arbitration in the settlement terms memorandum. Arbitration is a method of enforcement subject to negotiation, like other settlement terms. A tentative *198working document may include an arbitration provision, without reflecting an actual agreement to be bound. If such a typical settlement provision were to trigger admissibility, parties might inadvertently give up the protection of mediation confidentiality during their negotiations over the terms of settlement. Disputes over those terms would then erupt in litigation, escaping the process of resolution through mediation. Durable settlements are more likely to result if the statute is applied to require language directly reflecting the parties’ awareness that they are executing an “enforceable or binding” agreement.

Plaintiff claims that in this case, permitting defendants to use the shield of mediation confidentiality to thwart the agreement reflected in the memorandum of settlement terms would undermine the entire purpose of mediation, which is to settle disputes. He points out that after signing the memorandum, defendants told the trial court the case had settled and circulated a formal agreement declaring the settlement terms effective as of the date of the memorandum. Plaintiff contends this conduct proves that an enforceable settlement was intended, and that defendants’ subsequent repudiation of the settlement was merely an instance of “settlors’ remorse.” According to plaintiff, defendants refused to cooperate with his attempts to bring the parties back before the mediator to discuss the disputes that developed. Defendants, on the other hand, insist they always viewed the memorandum as a nonbinding document similar to a letter of intent regarding a proposed business relationship.

Plaintiff’s characterization of defendants’ postmediation conduct is one reasonable interpretation of the facts in this case. However, we do not believe the Legislature contemplated that in order to rule on the admissibility of a settlement agreement under section 1123(b), the court would examine extrinsic evidence to resolve competing claims over the parties’ intent. As explained above, the statute is designed to produce documents that clearly reflect the parties’ agreement that the settlement terms are “enforceable or binding.”

Plaintiff seeks support from Business and Professions Code section 467.4, which governs alternative dispute resolution programs administered by the Dispute Resolution Advisory Council (DRAG) of the California Department of Consumer Affairs. There, the Legislature specified that a settlement agreement reached with the assistance of such a program is unenforceable and inadmissible “unless the consent of the parties or the agreement includes a provision that clearly states the intention of the parties that the agreement or any resulting award shall be so enforceable or admissible as evidence.” (Bus. & Prof. Code, § 467.4, subd. (a).) Plaintiff reasons that the omission in section 1123(b) of a demand for “a provision that clearly states the intention *199of the parties” means the Legislature contemplated a less specific requirement for settlements reached in mediation proceedings.

We disagree. The “clearly states” provision of Business and Professions Code section 467.4 is not such a critical statutory phrase that its omission from section 1123(b) can be deemed to reflect a different legislative intent. (Cf., e.g., In re Young (2004) 32 Cal.4th 900, 907 [12 Cal.Rptr.3d 48, 87 P.3d 797].) The terms of section 1123(b), particularly when viewed in light of the purposes for which they were framed, are generally consistent with those of Business and Professions Code section 467.4. The Legislature is not required to employ identical terminology in separate statutes serving similar policy objectives. It would be anomalous to impose stricter requirements on settlements fostered by DRAG programs than on those reached in mediation proceedings. We construe related statutes so as to harmonize their requirements and avoid anomaly. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089 [29 Cal.Rptr.3d 234, 112 P.3d 623].)

Plaintiff also contends that an arbitration clause is severable from the contract in which it appears, and enforceable as a matter of law. He asserts that the strong public policy favoring arbitration supports the enforceability of the arbitration clause in the settlement memorandum signed by the parties. (See, e.g., St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195 [8 Cal.Rptr.3d 517, 82 P.3d 727].) However, a settlement agreement drafted during mediation must be admissible before a court can reach the issue of enforceability. Under our interpretation of section 1123(b), the parties are free to draft and discuss enforcement terms such as arbitration clauses without worrying that those provisions will destroy the confidentiality that protects mediation discussions. A different rule could hinder the policy favoring arbitration by discouraging parties from including arbitration clauses in draft agreements.

Plaintiff argues alternatively that the settlement memorandum before us must be viewed as a whole and construed by the standard rules of contract interpretation to determine whether it is “enforceable” for purposes of section 1123(b). However, this interpretation would render the statutory exception superfluous and permit the admission of any signed, written agreement meeting the requirements for an enforceable contract. That approach has been taken in other jurisdictions (see fn. 6, ante, pp. 196-197), but our Legislature has imposed a different rule. Section 1123(b) requires the parties to affirmatively provide that their agreement is enforceable or binding.

Thus, to satisfy section 1123(b), a settlement agreement must include a statement that it is “enforceable” or “binding,” or a declaration in other *200terms with the same meaning. The statute leaves room for various formulations. However, arbitration clauses, forum selection clauses, choice of law provisions, terms contemplating remedies for breach, and similar commonly employed enforcement provisions typically negotiated in settlement discussions do not qualify an agreement for admission under section 1123(b).7 (See, e.g., Aragaki et al., A Litigator’s Guide to Effective Use of ADR in California (Cont.Ed.Bar 2005) §§ 12.14, 12.19, 12.21, pp. 540, 543-544.)

DISPOSITION

The judgment of the Court of Appeal is reversed. The matter is remanded for further proceedings consistent with our opinion.

George, C. J., Baxter, J., Werdegar, J., Chin, 1, and Moreno, 1, concurred.