Lindsay

Betsy Lindsay, Michael Lindsay, and Ultrasystems Environmental, Inc. (collectively, Lindsay) appeal from a judgment on a stipulated settlement agreement in favor of Piotr Lewandowski, Joan Lewandowski, and the Hydro Company (collectively, Lewandowski). Lindsay argues the settlement agreement is unenforceable. We agree and reverse.

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In December 2000, the parties signed a stipulation for settlement following private mediation. One version, signed by most of the parties, states “in the event of a dispute as to the terms of the settlement the parties agree to return to the mediator for final resolution by binding arbitration.” The words “by binding arbitration” are a typed addition to form language that precedes it. Another version, signed by Michael Lindsay and Mary Bennett, does not have this addition.

Two provisions are at issue. One stated the parties agreed to “binding arbitration” of Ultrasystems Environmental, Inc.’s (Ultrasystems) claims against The Hydro Company (Hydro). The word “arbitration” is typed in above the line, directly above the word “mediation,” through which a line is drawn. It was further agreed that any arbitration award for Ultrasystems was…

I fully concur in the lead opinion but write separately because the term “binding mediation” is relatively new in the legal lexicon and because it is a deceptive and misleading term. Given that *1626 numerous court rules empower the judiciary to require attendance and good faith participation in a settlement conference 1 —the old fashioned term for mediation—lawyers may easily think that the term “binding mediation” simply means they are compelled to attend and participate; that’s all. They may not realize the term might be interpreted to mean that if a settlement is not reached, then, puff, the mediation becomes an arbitration.

I also write separately to more clearly register the oxymoronic character of the concept of “binding mediation.” As lawyers we should use precise language—that is our tradition. A fuzzy PR phrase like “binding mediation” is not worthy of us.

As all of us on this panel noted in Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517 [ 100 Cal.Rptr.2d 889 ], the authors of text (whether legislation, novels or settlement agreements) “generally do not want to contradict themselves—and when they do, their whimsy should be…

Betsy Lindsay, Michael Lindsay, and Ultrasystems Environmental, Inc. (collectively, Lindsay) appeal from a judgment on a stipulated settlement agreement in favor of Piotr Lewandowski, Joan Lewandowski, and the Hydro Company (collectively, Lewandowski). Lindsay argues the settlement agreement is unenforceable. We agree and reverse.

In December 2000, the parties signed a stipulation for settlement following private mediation. One version, signed by most of the parties, states "in the event of a dispute as to the terms of the settlement the parties agree to return to the mediator for final resolution by binding arbitration." The words "by binding arbitration" are a typed addition to form language that precedes it. Another version, signed by Michael Lindsay and Mary Bennett, does not have this addition.

Two provisions are at issue. One stated the parties agreed to "binding arbitration" of Ultrasystems Environmental Systems, Inc.'s (Ultrasystems) claims against The Hydro Company (Hydro). The word "arbitration" is typed in above the line, directly above the word "mediation," through which a line is drawn. It was further agreed that any arbitration award for Ultrasystems…