Mediation Message No. 56

COMPELLING A MEDIATOR TESTIMONY

California state courts allow only express waivers and potential due process violations as exceptions to mediation confidentiality. (Simmons v. Ghaderi (2008) 44 Cal.4th 570.) Although the federal courts in California are less restrictive regarding the scope of such confidentiality (see Mediation Message No. 55), they still, as a generality, only waive the concept in limited circumstances.

California finds the confidentiality provisions of Evidence Code section 1119 to be less important than the right to effective cross-examination and impeachment of an adverse witness in a criminal proceeding. (See Rinaker v. Superior Court (1998) 62 Cal.App.4th 155 holding that a mediator can be compelled to testify about the statements of a witness at mediation who is testifying adversely against juveniles in a subsequent proceeding.) The federal counterpart to Rinaker is Olam v. Congress Mortgage Company (N.D. Cal. 1999) 68 F.Supp.2d 1110 which holds that a mediator’s testimony can be compelled in a civil proceeding to establish whether a defaulting party was competent to enter into a settlement agreement that the opposing party was seeking to enforce. (Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 factually distinguished Olam because the parties in that matter had waived confidentiality but, otherwise, recognized it as a comprehensive discussion of mediation law. (Id. at p. 16).)

Both Rinaker and Olam provide the process that a trial court should go through in deciding whether or not to compel a mediator’s testimony. Olam is more helpful because it goes into more detail in explaining that process.

Rinaker states that the court should conduct an in camera hearing “to weigh the public’s interest in maintaining the confidentiality of mediation against the minors’ constitutionally based claim of need for the testimony, and to determine whether the minors have established that the mediator’s testimony is necessary to vindicate their right of confrontation.” (Id. at p. 161.) For example, the need for the mediator to testify in open court would be excused if he or she could not recall the statement needed to impeach the witness. (Id. at p. 170.) Also, the in camera process allows the trial court to assess the probative value of the mediator’s testimony. (Ibid.)

Rinaker rejected the suggestion that the moving party should be required to demonstrate that “there is no other evidence, unrelated to the mediation, which could be used to undermine” the testimony of the witness to be impeached. (Id. at p. 171.)

Olam, in reliance on Rinaker, allowed the mediator to first testify in closed proceedings regarding the plaintiff’s statements at mediation who was now claiming that the settlement should be voided because of “undue influence” at the mediation. Olam as does Foxgate, also noted that California Evidence Code section 703.5 confers on the mediator an independent privilege not to testify about statements or conduct in the mediation and that Rinaker had not focused on that provision. The mediator in Rinaker had objected to testifying only on the basis of Evid. Code sec. 1119 and not 703.5.

Olam states that the goal of the first stage of the two-step balancing process “is to determine whether the harm that would be done to the values that underlie the mediation privileges simply by ordering the mediator to participate in the in camera proceedings can be justified by the prospect that (the mediator’s) testimony might well make a singular and substantial contribution to protecting or advancing competing interests of comparable or greater magnitude.” (Id. at pp. 1131-1132.) In the second stage, the court should weigh and assess “(1) the importance of the values and interests that would be harmed if the mediator was compelled to testify (perhaps subject to a sealing or protective order, if appropriate), (2) the magnitude of the harm that compelling the testimony would cause to those values and interests, (3) the importance of the rights or interests that would be jeopardized if the mediator’s testimony was not accessible in the specific proceedings in question, and (4) how much the testimony would contribute toward protecting those rights or advancing those interests — an inquiry that includes, among other things, an assessment of whether there are alternative sources of evidence of comparable probative value.” (Id. at p. 1132.)

Rinaker and Olam should be considered in two situations: (1) a party to a mediation settlement agreement, in which all the parties have expressly waived mediation confidentiality, wants the mediator to testify as to what occurred at the mediation and (2) a due process violation might occur if mediation confidentiality were used to prevent a mediator’s testimony.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, January 2010

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