Mediation Message No. 11



It is very unusual for an attorney or party at either a consensual or court-ordered mediation not to appear at a subsequent mediation. (Message no. 7 reviewed the law and court rules which mandate that counsel, parties and individuals with settlement authority must attend mediations, unless excused.) The failure of a party or attorney to not cooperate, once present, is even more uncommon but can occur. This message discusses what the mediator or counsel may legally advise the trial court about such conduct.

The subject is governed by Evidence Code sections 1119 and 1121 and Foxgate Homeowner’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1. Evidence Code section 1119 states, in substance, that all oral and written communications made in a mediation are not discoverable and shall be confidential. Section 1121 provides that a court or other adjudicative body may not consider a report or any finding by a mediator, other than those authorized by law, concerning a mediation conducted by that mediator. Foxgate holds that there are no exceptions to section 1119 but, while a mediator may not report to the court about a participant’s conduct, that a party may do so.

The failure to appear at mediation by counsel, a party or a person with full authority to settle the case: Since this conduct occurred outside of the mediation, both the mediator and a party may report the non-appearance to the court. Consequently, a mediator can advise the court, in Judicial Council form ADR-100 (Statement of Agreement or Non-Agreement) about the failure of a party or counsel to appear at court-connected mediation programs authorized by Code Civ. Proc. Sections 1775 et seq. and 1730 et seq.

The failure by counsel or a party to cooperate during mediation: Foxgate applies to this situation, and only an opposing party may report such conduct. The reportable facts are limited to those that are non-communicative or, if communicative, were not for “the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation…” (Evid. Code sec. 1119(a).)

Judge Michael D. Marcus (Ret.)
ADR Services
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright, Michael D. Marcus, February 2004

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