Legal Question in Business Law in California

And I bet the plaintiffs settled the case! No, nothing that is said at a mediation is admissible in court nor is it binding, unless obtained in writing. It might be an ethical violation, and certainly no attorney wants to have unhappy clients.

As a Franchise Attorney I have to ask what the details of the "verbal agreement" were. Was it a "I might be willing to return" versus a "I will return?" What does your written contract with the attorney say about contract modifications? Most provide any modifications must be in writing and signed by both parties. Of course, as the other attorney points out, there may be a potential ethical violation after all of the above are considered. The State Bar of California has persons who will answer general questions about these issues. Consult with a good business or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

Mr. Stone does make some points. Agreements in mediation are usually done outside of court and need to be in writing to be enforceable pursuant to Code of Civil Procedure section 664.6. An oral agreement is only enforceable under that section if it is made in orally in court, when the judge asks the parties if they agree and the terms are entered into the reporter's transcript.

Code of Civil Procedure section 664.6 only applies, however, to pending litigation, and not to mediation conducted prior to litigation. Fee arbitration/ mediation between an attorney and a client can occur prior to litigation, and sometimes at the outset.

It is not clear from your post whether the mediation was conducted prior to, or during litigation. At this point, mediation confidentiality arises and the attorney could obviously raise the point that statements made in mediation are confidential and inadmissible, and that his statement was only an offer to compromise.