Practical rules for Parties in Mediation After Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 41 Cal.Rptr.3d 119 

Rule 1:  If you are the party who may be relying (the "Relying Party" or "Weaker Party") on any statement, conduct, or document from the other side in the mediation, do not sign a mediation contract unless it specifically allows disclosure after the mediation of all events, statements, or documents used or occurring in the mediation necessary later to evidence fraud, perjury, mental incapacity, mistake or failure to comply with family code disclosure requirements. The contract should be signed by all persons who conduct or otherwise participate in the mediation, including the mediator.  (See Evidence Code section 1122.)  Often you will find the mediator to be as opposed as the other party to this request.  If so, go find a mediator who will not oppose your right to negotiate these terms.  The selection of the mediator and the terms of the mediation contract may be the first step in your self assertion. 

Rule 2.  The Relying Party must not agree to a mediated settlement agreement that does not also specifically provide for the same protection required in Rule 1 in the mediation contract.  Also any specific documents, representations, or conduct that you want to be able to use later should be specifically listed in a clause beginning with "including but not limited to . . . ."  The Relying Party does not want an argument from the other party or the courts that the settlement agreement superseded the provisions of the mediation agreement.  The same parties must sign this agreement as must sign the mediation agreement.  If everyone will not sign, then do not sign the agreement. The Relying Party should assume that, based on the current appellate decisions, the appellate courts will do everything they can to deny protection to the Relying Party, so all protective steps must be taken in writing before ever getting to court. 

Rule 3.  If you want to set aside the settlement agreement, file your motion within six months if you can.  No matter what, file it within the statutory limits of Family Code section 2122. 

Rule 4.  No matter what side you are on, read and understand Marriage of Kieturakis. 

Comments: These rules may seem harsh, but they are the logical conclusions from the court's opinion.  It has been my observation over the last 37 years of practice that statistically the Relying Parties or Weaker Parties (relative to the other party in the relationship) in family law property and support matters tend to be women, often women who have been abused in one form or another throughout their marriage or who have accepted the traditional marital roles. That may change over time, but right now I think it is still true.  I am surprised that the legislature, which has been sensitive to women's issues, has done nothing to modify the bias of mediation in favor of the dominant party by modifying the mediation privilege as explained by the courts. This lack of action seems particularly strange given the legislature's declared policy of encouraging equal division of property, fair and adequate support, and full disclosure in the Family Code disclosure statutes that were enacted after the mediation privilege was enacted.

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