Kirschenman v. Superior Court

Opinion

ANDERSON, P. J.

Petitioners (defendants below and their attorney) seek a writ to vacate an order sanctioning them for failing to personally attend a mediation session and

requiring

them to participate in further mediation. Plaintiffs, real parties in interest, respond by urging us to rule that once an attorney orally agrees to mediate a dispute neither that attorney nor the client

[834]

may withdraw consent absent court approval upon a showing of good cause; we hold otherwise. We grant relief because (1) the court had no authority to mandate mediation; (2) there was no enforceable agreement to mediate; and (3) in any event, there was no failure to comply with the court’s mediation order.

Petitioners are Wayne Kirschenman and Kirschenman Enterprises, Inc. (hereafter Kirschenman) and Attorney Robert D. Patterson who represents Kirschenman (one of 14 named defendants) in the underlying multiparty commercial litigation and related cross-actions.

1

A status conference was held in the underlying case on April 15, 1994. Patterson appeared by telephone. The court asked the attorneys present if they were “interested in any kind of mediation on the case” and Patterson replied that he “would be willing to do that on behalf of Kirschenman.” Thereafter the attorneys chose private mediation and the court announced that there would be another status conference in 60 days. There was no discussion of personal appearance at the mediation by the litigants or their counsel, no minute order was entered nor was any written order signed by the court.

By letter dated May 13, 1994, Attorney Patterson informed the court that plaintiffs’ counsel and the defense attorneys located in Northern California were in the process of arranging to employ a mediator and that mediation was tentatively scheduled to occur in the early part of June. Patterson also stated that he had been informed by his client, Mr. Kirschenman, that Kirschenman would make no settlement of any kind. Patterson then asked to be excused from the mediation. The court denied the request. Thereupon, petitioners filed a mediation brief and paid their share of the mediation expenses. Neither Kirschenman nor Patterson appeared in person at the mediation session, which was held on June 6, 1994, but both did make themselves available by telephone.