Confidentiality in mediation

The California Supreme Court ruled that statements made during mediation cannot be used to bind a party to a settlement agreement she did not sign, according to the Metropolitan News-Enterprise.  

The facts are complicated (at least to me):

• Claim filed against a doctor.
• Doctor provided consent to her malpractice insurer to settle the case for no more than $150,000.
• Malpractice carrier, its attorney, and Plaintiffs' attorney agreed to $125,000.00 settlement.
• Doctor, learning of the settlement, reportedly said "Good, because I am revoking my consent."
• Mediator (a judge), plaintiffs, and their counsel signed the settlement agreement.  Neither doctor nor malpractice carrier signed.
• Parties battled for 15 months.  Doctor's attorney turned over to plaintiffs a copy of the consent form signed by the Doctor.

The California Supreme Court, overturning the decision of both the trial court and the court of appeals, ruled that there was no estoppel nor implied waiver exception to mediation confidentiality.  

According to the article, under California law (section 1122 of the Evidence Code) provides that a settlement agreement or other writing prepared as part of the mediation may be disclosed only if "all persons...who participate in the mediation expressly agreed in writing, or orally, in accordance with Section 1118, to disclosure."  Section 1118 permits disclosure of an oral settlement if the agreement is made in the presence of the mediator, agree that the agreement should be binding, and that it is reduced to writing and signed within 72 hours.  Section 1123 allows disclosure of a written agreement only if the parties agree or for the purposes of showing fraud, duress, or illegality.