MEDIATION CONFIDENTIALITY OVERVIEW
Because of the recent Cassell v. Superior Court (2011) 51 Cal.4th 113 decision, it is timely and appropriate to review all of the Supreme Court’s rulings on mediation confidentiality.
Mediators, pursuant to Evidence Code sections 1119 and 1121, may not report attorney misconduct or bad faith to jurists who have the underlying cases on their calendars. (Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1.) Foxgate was the first of the Court’s cases which held that mediation confidentiality is to be strictly interpreted.
Mediation confidentiality extends to all writings, including exhibits, prepared for mediation. (Rojas v. Superior Court (2003) 33 Cal.4th 407.) For example, a document made for mediation that summarizes a plaintiff’s damages is protected while a summary of the same damages prepared by a company bookkeeper during the course of the business’s operation is not.
To be enforceable, a mediation settlement must include a “direct statement to the effect that it is enforceable or binding”; in other words, the writing “must directly express the parties’ agreement to be bound by the document they sign.” (Fair v. Bakhtiari (2006) 40 Cal.4th 189.)
A potential due process violation is the only judicially crafted exception to confidentiality in the absence of legislative action. (Simmons v. Ghaderi (2008) 44 Cal.4th 570.)
All mediation discussions are confidential; thus, clients cannot sue their attorneys for anything said or done in or pursuant to mediation, even if no one else was present during that communication or act. (Cassel v. Superior Court, supra, 51 Cal.4th 113.) Again, the Court reminded that only the Legislature can create inroads to mediation confidentiality, the only exception being when strict interpretation would produce an absurd result.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, May 2011
Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.