Confidential or Not? Exploring the Admissibility of Settlement Discussions.

Justin M. O’Connell

Justin M. O’Connell is a partner at Cavassa O’Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O’Connell is a Certified Family Law Specialist, and served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015. He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey

1. Introduction

Settlement negotiations, whether in the context of a mediation or outside of mediation, are essential to litigation. Courts encourage settlement of issues either directly between parties and/or counsel or through the use of alternative dispute resolution. Indeed, parties are statutorily required to communicate—to "meet and confer"—regarding most discovery disputes prior to bringing discovery motions. The psychological motivations for resolution are usually strong because most people want a voice in determining how their lives will unfold. Because of the policies encouraging private dispute resolution and the financial and personal costs associated with litigation, the majority of family law and civil cases are resolved through settlement.