Mediation Message No. 39

Mediation Confidentiality Applies to any Writing or Statement that would not have Existed but for a Mediation Communication

Wimsatt v. Superior Court (June 20, 2007) no. B196903, 2007 DJDAR 8961, which not surprisingly upholds the concept of mediation confidentiality, is an interesting case nonetheless for the breadth given such confidentiality and, at the same time, its invitation to the legislature that it create exceptions to the concept.

Wimsatt and his law firm, Magaña, Cathcart & McCarthy, were sued for legal malpractice by a former client who claimed that they had breached their fiduciary duty to the client by submitting an unauthorized settlement demand to the defense. In the underlying matter, a defense attorney had written in a confidential mediation brief for a second mediation that Wimsatt had purportedly communicated a settlement demand for $1.5 million, which was $2 million less than the authorized demand at the first mediation. The case settled at the second mediation for an undisclosed amount.

The client’s co-counsel in the underlying case, who was not associated with the Magaña firm, was told by the defense attorney that he had obtained the $1.5 million figure second-hand from another defense attorney who had talked directly to Wimsatt and that Wimsatt had made the same remark during a conference call in which the scheduling of expert depositions and the utility of a second mediation had also been discussed.

Wimsatt and Magaña denied the allegation and sought a protective order in the trial court against the discovery of the plaintiff’s two mediation briefs and the defendant’s second brief; the contents of e-mails between Wimsatt, the defense attorney who had written the mediation brief and plaintiff’s co-counsel the day before the second mediation in which the defense attorney and Wimsatt responded to co-counsel’s question about the origin of the $1.5 million demand and, finally, the contents of a conversation between Wimsatt and the two defense attorneys “on the eve of the second mediation session.”

The appellate court, in reversing in part the trial court’s denial of the protective order, held that the plaintiff’s and defendant’s mediation briefs are protected from disclosure. The e-mails are also protected because their “purpose was to clarify statements made in the mediation briefs as such statements would significantly affect the mediation negotiation to be held the next day. The e-mails would not have existed had the mediation briefs not been written.” Protection, however, was not given to the telephonic statements between Wimsatt and the defense attorneys because Wimsatt and Magaña, as the moving parties, had not satisfied their burden of showing that the conversation, which could have been made a few days or a month before the mediation, was linked to the second mediation or was “anything other than expected negotiation posturing that occurs in most civil litigation.” Thus, they failed to show that “the statement would not have existed but for a mediation communication, negotiation or settlement discussion.”

The above “would not have existed” standard is a creative extrapolation. While Wimsatt relied on Rojas v. Superior Court (2004) 33 Cal.4th 407, 417 n. 5; Eisendrath v. Superior Court (2003) 109 Cal.4th 351, 364 and Doe I v. Superior Court (2005) 132 Cal.App.4th 1160, 1166-1167 for this pronouncement, neither the facts nor language in these three decisions specifically support this holding. Footnote 5 in Rojas discusses the principle in Federal Rule of Evidence 408 that the simple use of evidence in mediations does not immunize it from being discovered. Eisendrath, which is concerned about the discovery of statements made by a divorcing couple in a mediation, provides confidentiality to “any communications between mediation participants before the end of mediation that occur outside the mediator’s presence, provided that these communications are materially related to the mediation.” Doe I prohibits the release of written summaries of the personnel records of priests accused of sexually molesting minors, which summaries had been prepared for an ongoing mediation.

Wimsatt is more interesting (and ultimately important) for acknowledging the clear language in Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 that exceptions to mediation confidentiality must be created by statute (fn. 1) and then asking the legislature, because of “the number of cases in which the fair and equitable administration of justice has been thwarted (by mediation confidentiality) … to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.” (Fn. 2.) Whether the legislature produces anything meaningful in response to this request will be influenced in part by the probable lobbying efforts of the plaintiffs’ and defendants’ bars, neither of which is expected to favor inroads to mediation confidentiality.

(Fn. 1.) “The conflict between the policy of preserving confidentiality of mediation in order to encourage resolution of disputes and the interest of the state in enforcing professional responsibility to protect the integrity of the judiciary and to protect the public against incompetent and/or unscrupulous attorneys has not gone unrecognized. (Citations omitted.) As noted, however, any resolution of the competing policies is a matter for legislative, not judicial, action.” (Id. at p. 17, n. 13; emphasis included.)

(Fn. 2.) Wimsatt relies upon a scholarly article by Peter Robinson, the Managing Director of the Straus Institute for Dispute Resolution at Pepperdine University School of Law, to establish that California’s mediation statutes have created inequities.

Copyright, Michael D. Marcus, July 2007

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