Reese v. Tingey v. LWP Claims Solutions

2008 UT 7
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Murlyn Craig Reese, No. 20060594
Plaintiff and Appellee,
v.
Tingey Construction and/or
Freemont Compensation
Insurance Group,
Defendants and Appellees,
v.
LWP Claims Solutions, Inc., F I L E D
Real Party in Interest
and Appellant. February 1, 2008
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Third District, Salt Lake
The Honorable Mark S. Kouris
No. 040910356
Attorneys: C. Richard Henriksen, Jr., Robert M. Henriksen,
Salt Lake City, for appellee
Tim Dalton Dunn, Susan Black Dunn, S. Grace Acosta,
Salt Lake City, for appellant
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DURHAM, Chief Justice:
INTRODUCTION
¶1 In this case, LWP Solutions, Inc. (LWP) appeals from a
trial court order requiring its attorney Grace Acosta to appear
and be deposed regarding the content of the mediation proceeding
in which she allegedly reached a settlement on LWP’s behalf with
Murlyn Craig Reese. We are asked to determine whether Acosta’s
testimony regarding the content of the mediation is protected
from disclosure by laws governing confidentiality in mediation
and whether Utah law requires agreements reached during mediation
to be reduced to writing in order for them to be enforceable by a
court. We conclude that the content of the mediation is
confidential and that mediation agreements must be reduced to
writing in order to be enforceable. Thus, we reverse.

No. 20060594 2
BACKGROUND
¶2 On May 24, 2000, Murlyn Craig Reese fell from a third-
story balcony and significantly injured his leg when the
temporary railing he was leaning on gave way. At the time of the
accident, Reese was working for Interwest Mechanical, a
subcontractor of Tingey Construction. Because his injuries
occurred within the scope of his employment, Freemont Compensation
Insurance, Interwest Mechanical’s workers compensation insurance
carrier, provided coverage for the medical expenses relating to
the injury.
¶3 In 2003, Freemont went into liquidation and, pursuant to
Utah Code section 31A-28-202 to -222 (2005 & Supp. 2007), the
Utah Property and Casualty Insurance Guaranty Association
(UPCIGA) assumed financial responsibility for Reese’s medical
expenses. UPCIGA retained LWP to make payments for Reese’s
medical expenses using UPCIGA funds.
¶4 On May 18, 2004, Reese filed suit against Tingey
Construction, alleging that it negligently constructed the
railing and that absent the negligence, Reese would not have
fallen. Reese and Tingey Construction voluntarily agreed to try
to settle their dispute through mediation on December 30, 2005.
As Reese’s insurance carrier, UPCIGA had a subrogation interest
in any settlement proceeds, and LWP acted as UPCIGA’s agent at
the mediation to protect that interest. Reese alleges that he
and LWP made an oral agreement to settle and that he relied on
that agreement in reaching agreement with Tingey Construction.
When the mediator incorporated the terms of both agreements into
a Memorandum of Understanding (Memorandum), LWP refused to sign
because, according to LWP, the Memorandum included a term to
which it did not agree.
¶5 Reese and Tingey Construction filed a Joint Motion to
Enforce Settlement. LWP argued that no agreement was made and
that Utah Code section 78-31b-8 (Supp. 2007) prohibits Reese from
revealing confidential mediation communications. The trial court
found that “[m]ediation discussions contain ‘confidential’ and
‘non-confidential’ discussions” and that the alleged agreement
between Reese and LWP was nonconfidential. Based on those
findings, the trial court ordered LWP’s mediation counsel, Grace
Acosta, to “appear and be deposed regarding the content of the
mediation . . . including the process of the mediation and the
conversations and agreements that were made during the
mediation.” LWP filed a petition for discretionary interlocutory
appeal with this court, seeking to preserve the confidentiality
of the mediation discussions and to prevent Acosta from being
deposed. We granted the petition.

1 LWP’s June 1, 2006 Motion to Intervene in the underlying
lawsuit was granted on July 10, 2006, roughly six months after
the mediation occurred. The Minute Entry granting the LWP’s
motion states, “[I]t appears that LWP Solutions has already been
functioning as a party to this matter, including participating in
the parties’ mediation.” Additional documents in the record
below, including Reese’s attorney’s affidavit and Reese’s motion
to enforce the alleged oral agreement, suggest that it was also
Reese’s understanding that LWP was a party to the mediation. In
any event, no contrary position was taken by Reese below.
3 No. 20060594
STANDARD OF REVIEW
¶6 We are asked to determine whether Utah Code section 78-
31b-8 (Supp. 2007) requires that discussions among participants
in a mediation relating to an alleged oral agreement be kept
confidential and whether the Utah Rules of Court-Annexed
Alternative Dispute Resolution require agreements reached in the
course of a mediation to be reduced to writing. Both issues are
matters of statutory construction and thus present questions of
law that we review for correctness. Anderson v. United Parcel
Serv., 2004 UT 57 ¶ 7, 96 P.3d 903. We have jurisdiction over
interlocutory appeals pursuant to Utah Code section 78-2-2(3)(j)
(2002).
ANALYSIS
I. UTAH’S ALTERNATIVE DISPUTE RESOLUTION ACT PROTECTS AGAINST
DISCLOSURE OF MEDIATION COMMUNICATIONS, AND THEREFORE, MS. ACOSTA
MAY NOT BE DEPOSED REGARDING THE CONTENT OF THE MEDIATION
¶7 As a preliminary matter, we note that in his brief
before this court, Reese argued that the oral agreement he claims
to have reached with LWP was not reached within the context of
the mediation and is therefore governed strictly by contract law
and not by mediation rules. The argument that LWP was not a
party to the mediation was not raised before the trial court.1
Absent plain error by the trial court or exceptional
circumstances, neither of which have been argued by Reese, we
will not consider the question. State v. Rhinehart, 2007 UT 61,
¶ 21, 167 P.3d 1046.
¶8 As a participant, LWP is entitled to the benefits of
the laws governing mediation, which direct that mediation
proceedings are designed to “encourage[] informal and
confidential exchange among the persons present to facilitate
resolution of the dispute.” Utah Code Ann. § 78-31b-8 (Supp.
2007). “Confidentiality of all communications between the

No. 20060594 4
parties or among them and the mediator serves the important
public policy of promoting a broad discussion of potential
resolutions to the matters being mediated.” Wilmington
Hospitality, L.L.C. v. New Castle County, 788 A.2d 536, 541 (Del.
Ch. 2001). This candid exchange of information and ideas can be
achieved only when the parties are assured that their
communications will be protected from postmediation disclosure.
The U.S. Court of Appeals for the Second Circuit, in discussing
the importance of confidentiality during preargument conferences
designed for the purpose of considering settlement or
simplification of the issues, stated as follows:
It is essential to the proper functioning of
the Civil Appeals Management Plan that all
matters discussed at these conferences remain
confidential. The guarantee of
confidentiality permits and encourages
counsel to discuss matters in an uninhibited
fashion often leading to settlement . . . .
If participants cannot rely on the
confidential treatment of everything that
transpires during these sessions then counsel
of necessity will feel constrained to conduct
themselves in a cautious, tight-lipped, non-
committal manner more suitable to poker
players in a high-stakes game than to
adversaries attempting to arrive at a just
resolution of a civil dispute. This
atmosphere if allowed to exist would surely
destroy the effectiveness of a program which
has led to settlements and withdrawals of
some appeals and to the simplification of
issues in other appeals, thereby expediting
cases at a time when the judicial resources
of this Court are sorely taxed.
Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d
928, 930 (2d Cir. 1979) (internal quotation marks and citation
omitted).
¶9 We recognize existing statutory exceptions to this
general rule of mediation confidentiality. For example, all
parties to a mediation, including the mediator, can agree to
disclose information, such as memoranda, notes, records, or work
product, that is obtained during the mediation. See Utah Code
Ann. § 78-31b-8(4). A written agreement resulting from the
mediation, signed by all the parties, may be filed with a court
and enforced as a judgment of the court. Id. § 78-31b-7(3)(a).
Other specific exceptions, such as discovery of child abuse or

5 No. 20060594
neglect, also require disclosure. See id. § 78-31b-8(6). We
further recognize that in certain circumstances, for example, if
duress, fraud, or another credible contract defense is alleged,
the interests of justice may outweigh the parties’ need for
confidentiality in determining whether a settlement agreement was
reached. None of these exceptions applies in this case.
¶10 The trial court’s June 2006 Order concluding that
“[m]ediation discussions contain both ‘confidential’ and ‘non-
confidential’ discussions” and ordering Acosta to submit to a
deposition “regarding the content of the mediation,” including
“the process of the mediation and conversations and agreements
that were made in the mediation” conflicts with the laws and
policy considerations outlined above. If, as indicated by the
trial court’s order, nonconfidential portions of the mediation
include the content, process, conversations, and agreements of
the mediation, it is hard to see what portion of the mediation
would remain confidential. Furthermore, a practice of permitting
courts to undertake the kind of after the fact sorting exercise
necessitated by the trial court’s order could jeopardize
mediation participants’ willingness to freely engage in
settlement-inducing dialogue, thus undermining a primary
requirement of successful mediation. Ryan v. Garcia, 33 Cal.
Rptr. 2d 158, 161 (Ct. App. 1994) (“[T]he risk of this judicial
sifting [to select which statements can be used as evidence of an
agreement] would deter some litigants from participating freely
and openly in mediation.”).
¶11 Additionally, Utah Code section 78-31b-8(4) prohibits
any “person attending an ADR proceeding . . . [from] disclos[ing]
or be[ing] required to disclose any information obtained in the
course of an ADR proceeding” unless all parties and the mediator
agree otherwise. Under this rule, unless LWP consents, along
with Reese, Tingey Construction, and the mediator, Acosta is
prohibited from disclosing information obtained during the
mediation, including information related to the alleged existence
of an oral agreement. The Utah Court of Appeals, in remanding a
case where a party similarly sought to enforce an oral agreement
allegedly reached during a mediation, forcefully stated,
“[N]either counsel nor parties may disclose to any court, in
argument, briefs, or otherwise, statements or comments made
during the [] mediation.” Lyons v. Booker, 1999 UT App. 172,
¶ 7, 982 P.2d 1142. Because LWP has not agreed to the disclosure
Reese requests and because no other exception to the mediation
privilege applies, Acosta may not be required to testify
regarding the alleged existence of an oral agreement.
Accordingly, we vacate the trial court’s order requiring Acosta
to appear and be deposed regarding the content of the mediation.

2 We requested supplemental briefing from the parties
regarding application of the Utah Uniform Mediation Act (UUMA),
Utah Code section 78-31c-101 to -114, which became effective May
1, 2006, roughly five months after the mediation at issue in this
case. The UUMA provides that “on or after May 1, 2007, this
chapter governs all agreements to mediate whenever made.” Utah
Code Ann. § 78-31c-114(2) (Supp. 2007). In their supplemental
briefs, both Reese and LWP responded that the UUMA does not apply
in this case. In light of the parties’ concurrence on this
issue, this opinion will not apply the UUMA but should not be
understood to conclude one way or the other as to whether the
UUMA would otherwise be applicable.
3 Courts in California, Colorado, Delaware, Florida, and
Indiana have held that courts are precluded from inquiring into
alleged oral agreements purportedly reached during mediation.
See, e.g., Ryan v. Garcia, 33 Cal. Rpt. 2d 158, 161-62 (Ct. App.
1994) (holding that statements made in the course of a mediation
concerning the existence of an alleged settlement agreement were
inadmissible as evidence in accordance with a provision of the
state evidence code); Nat’l Union Fire Ins. Co. of Pittsburgh v.
Price, 78 P.3d 1138, 1141 (Colo. Ct. App. 2003) (interpreting
(continued...)
No. 20060594 6
II. AGREEMENTS REACHED IN THE COURSE OF MEDIATION MUST BE
REDUCED TO WRITING IN ORDER TO BE ENFORCEABLE BY A COURT2
¶12 Utah Code section 78-31b-7(3)(a) (Supp. 2007) provides
that “any settlement agreement between the parties as a result of
mediation may be executed in writing, filed with the clerk of the
court, and enforceable as a judgment of the court.” While this
statute recognizes that parties are free to enter into an
agreement that is not executed in writing (“any settlement
agreement . . . may be executed in writing” (emphasis added)),
only agreements executed in writing will be “enforceable as a
judgment of the court.” A court cannot enforce the terms of an
oral agreement reached in mediation without requiring parties to
disclose, and the court to consider, confidential settlement
negotiations. Absent the existence of an exception, see supra
¶ 9, we are not prepared to invade the confidentiality
protections afforded parties to mediation in this manner. A rule
permitting courts to enforce only written mediation agreements
operates in tandem with the rules providing mediation
confidentiality. The existence of an executed agreement provides
a court with the means to use its power to enforce the terms of a
written agreement or to determine whether the terms of the
written agreement have been violated without requiring it to
delve into the confidential process that led to the creation of
the agreement.3 The National Conference of Commissioners on

3 (...continued)
Colorado’s dispute resolution act’s provision for court
enforcement of only written mediation agreements as an
intentional omission by the legislature regarding enforcement of
oral agreements); Wilmington Hospitality, L.L.C. v. New Castle
County, 788 A.2d 536, 541-42 (Del. Ch. 2001) (holding that “it is
inconsistent with the public policy favoring voluntary mediation
for a court to entertain a motion to enforce a mediated
settlement agreement that is not reduced to writing and signed by
the parties to the mediation” and stating that “such a bright-
line rule is the best way to protect the confidentiality of the
mediation when disputes arise over the terms of a putative
settlement”); Gordon v. Royal Caribbean Cruises Ltd., 641 So. 2d
515, 517 (Fla. Dist. Ct. App. 1994) (holding that a settlement
agreement reached during mediation is binding only if it has been
reduced to writing and signed by the parties to the agreement);
Cohen v. Cohen, 609 So. 2d 785, 786 (Fla. Dist. Ct. App. 1992)
(“An oral agreement reached during mediation is inadmissible as
privileged unless it has been reduced to writing.”); Hudson v.
Hudson, 600 So. 2d 7, 9 (Fla. Dist. Ct. App. 1992) (holding that
various disclosures of discussion “vis-a-vis agreements between
the parties” violated the mediation confidentiality statute and
that the “confidentiality of the negotiations should remain
inviolate until a written agreement is executed by the parties”);
Vernon v. Acton, 732 N.E.2d 805, 809 (Ind. 2000) (holding that
while settlement agreements generally do not need to be in
writing to be enforceable, settlement agreements “reached in
mediation . . . shall be reduced to writing and signed” (internal
quotation marks omitted)); Spencer v. Spencer, 752 N.E.2d 661,
665 (Ind. Ct. App. 2001) (holding that the trial court erred in
enforcing an alleged mediation agreement that had not been
reduced to writing, signed by the parties, and approved by the
trial court).
In contrast, courts in North Carolina and Oregon have
enforced oral settlement agreements reached during mediation.
See, e.g., Few v. Hammock Enters, 132 N.C. App. 291, 296 (Ct.
App. 1999) (permitting a judge to make a determination of whether
a settlement was reached during a mediated settlement conference
and the terms of that settlement); Kaiser Found. Health Plan of
the Northwest v. Doe, 903 P.2d 375, 378 (Or. Ct. App. 1995)
(applying traditional contract law to enforce an oral agreement
reached during mediation and stating, “We can find no authority
that supports the proposition that settlements reached during
mediation should receive special treatment or be analyzed
differently from settlements reached in other settings”).
7 No. 20060594
Uniform State Laws explained in a comment to the Uniform
Mediation Act that oral agreements were intentionally not

4 The UUMA contains substantially the same language as that
suggested by the National Conference of Commissioners on Uniform
State Laws in the Uniform Mediation Act.
No. 20060594 8
included in the list of exceptions to mediation privilege. The
comment states:
This exception [for written agreements] is
noteworthy only for what is not included:
oral agreements. The disadvantage of
exempting oral settlements is that nearly
everything said during a mediation session
could bear on either whether the parties came
to an agreement or the content of the
agreement. In other words, an exception for
oral agreements has the potential to swallow
the rule of privilege.
Nat’l Conf. of Comm’rs on Unif. State Laws, Uniform Mediation
Act, Section 6, Reporter’s cmt. 2, Section 6(a)(1), Record of an
agreement (Aug. 2003). Although we are not applying the rules
contained in either the Uniform Mediation Act or the UUMA in this
case,4 see supra note 2, the policy underlying the comment
included by the drafters of the Uniform Mediation Act is
reflective of our analysis and of our conclusion that a court can
enforce only a mediation agreement that has been reduced to
writing.
¶13 A writing requirement also encourages parties to
prepare a comprehensive, final settlement agreement free from
misunderstandings and ambiguities. This is particularly
important in the mediation context where “parties are often
encouraged to consider hypothetical solutions to their dispute”
creating an “informal atmosphere” where “parties need to be
reminded of the import of their final nods of assent [and
s]igning a writing is a simple formality that most people
understand as a binding act.” Ellen E. Deason, Enforcing
Mediated Settlement Agreements: Contract Law Collides with
Confidentiality, 35 U.C. Davis L. Rev. 33, 76-77 (2001); see also
Vernon, 732 N.E.2d at 810 (“Requiring written agreements, signed
by the parties, is more likely to maintain mediation as a viable
avenue for clear and enduring dispute resolution rather than one
leading to further uncertainty and conflict.”). Requiring a
writing also permits parties to “ferret out” areas where
additional clarification is necessary. Although declining to
adopt a bright-line rule requiring that mediation agreements be
reduced to writing, the court in Catamount Slate Prods v.
Sheldon, 845 A.2d 324 (Vt. 2003), noted how the process of
reducing an agreement to writing often raises additional issues

5 The court ultimately refused to enforce the oral
agreement, in part because the parties’ agreement to mediate that
governed the mediation “clearly contemplate[d] that any
settlement agreement . . . would be binding only after being put
in writing and signed.” Catamount Slate Prods v. Sheldon, 845 A.
2d 324, 329.
9 No. 20060594
necessary to the resolution of a dispute.5 In quoting the Second
Circuit, the Vermont Supreme Court explained, “‘[T]he actual
drafting of a written instrument will frequently reveal points of
disagreement, ambiguity, or omission which must be worked out
prior to execution. Details that are unnoticed or passed by in
oral discussion will be pinned down when the understanding is
reduced to writing.’” Id. ¶ 23 (quoting Winston v. Mediafare
Entm’t Corp., 777 F.2d 78, 82 (2d Cir. 1986)).
¶14 A core principle of mediation is the notion of party
autonomy, founded on the belief that the parties in conflict are
best suited to resolve their dispute in a way that fits their
needs and interests. While traditional contract laws, under
certain circumstances, permit courts to enforce oral agreements,
we do not think this is an appropriate role for courts when the
putative agreement was reached within the context of a mediation.
A writing requirement both honors autonomy and provides an added
means of producing a workable and durable agreement. In this
case, disclosure of confidential mediation information by the
parties in their briefs and throughout the record below is
troublesome. Conduct and statements made in the course of a
mediation are not admissible in a later court proceeding. Utah
Code Ann. § 78-31b-8(2) (“No evidence concerning the fact,
conduct, or result of an ADR proceeding may be subject to
discovery or admissible at any subsequent trial of the same case
or same issues between the same parties.”). We are concerned, in
the context of the statutory mandate of confidentiality, by the
ease with which the parties and the trial court discussed
mediation communications. We hope this opinion will put future
litigants and courts on notice that the statutory bar is to be
carefully observed. With respect to this case, we order the
portions of the record disclosing confidential mediation
information sealed and further order that any of the trial judges
who have reviewed confidential information from the mediation in
this case recuse themselves from further proceedings. See Lyons
v. Booker, 1999 UT App 172, ¶ 9 (ordering “the judges hearing
this motion, having reviewed the moving papers in question, []
recused from further proceedings”).

6 We note that a writing via various electronic media, such
as an email exchange between the parties in which they agree to
particular provisions or a recording in which the parties
affirmatively state what constitutes their agreement, would
satisfy this requirement.
No. 20060594 10
CONCLUSION
¶15 In reversing the trial court order requiring Acosta to
be deposed regarding the content of the mediation between Reese,
Tingey Construction, and LWP, we expressly recognize the
importance of maintaining confidentiality in the mediation
process and hold that Utah law requires agreements reached in
mediation to be reduced to a writing and signed by all the
parties to the agreement in order for the agreement to be
enforceable by a court.6
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¶16 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.