A recent article by Justin O’Connell in Issue 2 of the 2017 Family Law News contains a detailed discussion of the confidentiality of settlement discussions. To paraphrase the article, I believe we can all agree that the Family Law courts encourage settlement and most parties want a result they can agree to. However, where settlement discussions do not resolve an entire case, parties should be aware that settlement discussions can be admissible in evidence at trial.

Although lawyers often refer to settlement discussions as “privileged,” the Evidence Code does not recognize a settlement discussion privilege. What the Evidence Code does recognize in §§1152 and 1154 is an “exclusion” from using settlement discussions to prove liability for or the invalidity of a claim. Moreover, settlement documents can be discoverable as the plaintiff in Volkswagen v. Superior Court139 CA4th 1481 learned when he objected to the disclosure of his settlement documents in a bankruptcy case and was overruled in civil court.

In summary, Evidence Code §§1152 and 1154 are not absolute prohibitions to the admissibility of settlement discussions which may contain information other than proving liability. These Evidence Code sections only prohibit the introduction of evidence for the purpose of proving liability for a claim. See Fletcher v. Western National Life, 10 CA3d 376. They likely do not prohibit court consideration of settlement discussions regarding child custody or the character of an asset. This does not mean family law parties and their attorneys should not discuss settlement. What is does mean is that an admission of drug addiction during settlement may be admissible in a custody trial.

Before leaving this topic, it should be noted that mediation has its own set of rules beginning with Evidence Code §1115; that is beyond the scope of the above comments. However, mediation is discussed on the O’Connell article. Also, the above comments do not discuss the use of a written stipulation to keep settlement discussions confidential and inadmissable.

Do you want to know more about the confidentiality of settlement claims as well as the latest information on family law? If you’d like more information in any area of family law, please contact our office to schedule a consultation. The Law Office of Family Law Attorneys Bawden & Kochis handle legal issues regarding separation, child custody, visitation, adoption, annulment, mediation, domestic violence, child and spousal support as well as pre and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]

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