FEDERAL MEDIATION RULES REGARDING CONFIDENTIALITY
Since I’ve written extensively about the impact of mediation confidentiality on California state court proceedings (see Mediation Messages 11, 17, 21, 34, 37, 39, 45 and 49), it’s only appropriate that I also discuss that principle as applied by the three California federal districts in their respective local rules.
The Northern District, which has the most elaborate guidelines of the three California federal districts regarding the conduct of mediations, applies confidentiality to anything that was written for or said in connection with a mediation, including “any position taken, and any view of the merits of the case expressed by any participant in connection with any mediation.” (Local rule 6-12(a).) That rule does not prohibit a report to or inquiry by the ADR Magistrate Judge regarding a possible violation of the ADR local rules. (Local rule 6-12(b)(3).) These local rules do not include a requirement that the parties negotiate in good faith.
In a commentary to local rule 6-12, the Northern Federal District, while observing the general confidentiality of mediation proceedings and relying, in part, on Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1 (a mediator may not report a participating attorney’s misconduct to the trial court), Rojas v. Superior Court (2004) 33 Cal.4th 403 (all writings prepared for mediation are not discoverable) and Simmons v. Ghaderi (2008) 44 Cal.4th 570 (neither estoppel nor implied waiver are exceptions to mediation confidentiality) for the proposition of confidentiality, notes that the concept of absolute confidentiality may be excused in “limited circumstances in which the need for disclosure outweighs the importance of protecting the confidentiality of a mediation.” Those circumstances include threats of death or substantial bodily injury, use of mediation to commit a felony and the right to cross-examination in a quasi-criminal proceeding. (Unlike the Northern District, the California Supreme Court recognizes only an express waiver by the parties and the need to uphold due process rights as exceptions to mediation confidentiality. (Id.).)
The Central Federal District, regarding mediation confidentiality, notes only that “All settlement proceedings shall be confidential. No part of a settlement proceeding shall be reported, or otherwise recorded, without the consent of the parties, except for any memorialization of a settlement and the Clerk’s minutes of the proceeding.” (Local Rule 16-15.8.)
The Southern Federal District provides that no “statement … by any party, attorney or other participant” shall be “made known to (inter alia) the trial court or jury…” (Local Rule 600-7(d).) Also, sanctions can be imposed for the failure of counsel or a party to act in good faith in the course of a mediation. (Local Rule 600-7(g).) Thus, the Southern Federal District, unlike the other two federal districts and the state of California, allows a mediator or a party to report an opposing party’s bad faith conduct during a mediation as long as that information has not been “made known to the trial court.”
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
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Copyright Michael D. Marcus, December 2009