Michael P. Carbone

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Publications > Mediation Confidentiality

  

A PRIMER ON MEDIATION CONFIDENTIALITY

Michael P. Carbone, Esq*

 

                        Mediation is a process in which the mediator facilitates communication between the parties to a dispute for the purpose of helping them to reach an agreement.  In order to encourage the parties to be open and candid with the mediator and with each other, California law provides that all communications that take place during mediation are confidential.

                        In 1997 the Legislature enacted Evidence Code §§1115-1128.  These statutes established mediation confidentiality as an evidentiary exclusion based upon a strong public policy.  The rules and procedures are extensive and detailed, and many misunderstandings exist about their meaning and application.  This primer attempts to clear up some of those misunderstandings while also providing a basic working knowledge of the subject for lawyers who may not be thoroughly familiar with this aspect of mediation.

 

                        For the purpose of confidentiality, what is a mediation?

                        Evidence Code Section 1115 defines “mediation” in broad terms, allowing for flexibility in structuring the process and in the styles employed by different mediators.  Because the process is intended to be voluntary the definition expressly excludes a mandatory settlement conference.  Despite this exclusion we sometimes see court orders that send parties to mediation and refer to it as a mandatory settlement conference.  Such orders can be viewed in two ways.  They may be unenforceable as an attempt to mandate mediation, as the court held in Jeld-Wen Inc. v. Superior Court (2007) 146 Cal.App.4th 536.   Alternatively, they may result in a loss of confidentiality by transforming the intended mediation into an MSC.  In either case they are ill-advised.

                        Counsel should be aware that in San Francisco the early settlement conferences administered by the Bar Association in conjunction with the Superior Court are also MSC’s.  Parties are given the option of converting the conference into a mediation if the settlement panelist agrees to do so.

 

                        What is protected by confidentiality?

                        Section 1119 protects two kinds of evidence from discovery and admissibility.  Anything that was said or any admission that was made for the purpose of, in the course of, or pursuant to a mediation or a “mediation consultation” is protected.  Likewise, any “writing” (as defined in Section 250) “that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” is also protected.


                        What is a mediation consultation?

                        Section 1115(c) defines it as “a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.”  Confidentiality begins with these communications.

 

                        What is the difference between the confidentiality of mediation and the protection given by Section 1152?

                        The protection afforded by Section 1152 is much narrower than that which is provided by Section 1119.  It applies to an offer of compromise or to furnish something of value to another person who has sustained or claims to have sustained loss or damage.  It also extends to any “conduct or statements made in negotiation thereof.”  While it applies to the negotiation of settlement terms it may not apply to other communications, such as admissions against one’s interest.  It affords no protection for claimants and it is doubtful that it would apply to “writings” in the same manner as Section 1119.

                        Do the parties have to sign a confidentiality agreement?

                        Confidentiality will apply even in the absence of a written agreement.  Still, it is advisable to have an agreement.  It is a good way to create a written record that a mediation took place and to identify who the participants were.  It can also serve other purposes.  For example, if the case does not settle at the initial session the mediation may be adjourned.  Section 1125 (a)(5) provides that if there is no communication between the mediator and any of the parties for a period of 10 calendar days, the mediation will be deemed to have ended.  Confidentiality will not apply thereafter.  A written agreement at the beginning of the mediation can extend that time so that confidentiality will remain in effect while the parties continue to discuss settlement with the mediator.

 

                        How is forensic evidence protected?

                        Evidence such as photographs, written statements, and consultants’ reports can be very persuasive in mediation.  Section 250 defines the term “writings” in such a way as to include all of those things.

 

                        In Rojas v. Superior Court (2004) 33 Cal. 4th 407, which was a construction defect case, the California Supreme Court affirmed the confidentiality of all “writings” that are prepared for the purpose of mediation.  It rejected the Court of Appeal’s analysis that the confidentiality of such evidence depends on whether it amounts to protected “work product.”  As the Court explained, the factors which determine whether the evidence is confidential are whether it is actually a “writing” and whether it was “prepared for the purpose of mediation.” 

Photographs and written witness statements both qualify as “writings” by the terms of Section 250.  “Raw test data” or actual physical samples are not “writings,” but the recorded analyses of those samples or data would be “writings.”

 

                        How can it be shown that the evidence was in fact “prepared for the purpose of mediation?”

                        There is no requirement that it be marked in any particular manner, nor that it be prepared only for the purpose of mediation.  Nevertheless, it is helpful to document the intent to use it in mediation, such as in a letter to a consultant or photographer.  Evidence that is created merely in response to discovery will not qualify in the absence of a stipulation between the parties.  And evidence that is otherwise discoverable or admissible will not be treated as confidential simply because it was used in a mediation.  (See §1120.)  The intent of the law is to protect those things that were created for mediation and would not otherwise have existed.

 

                        Is confidentiality a “privilege?”

                        Contrary to popular belief, there is no “mediation privilege” in California. Privileges can be lost or given up in various ways, such as by statements or conduct that would imply an intent to waive the privilege.  Since the confidentiality of mediation is an evidentiary exclusion, it should not be characterized as a privilege.

 

                        Can confidentiality still be waived or lost?

            The exclusion can be waived or relinquished, but only in the manner outlined in Section 1122, which requires that one of two things must occur. Either all participants in the mediation must expressly agree to a disclosure. Or, if the communication or writing was made or prepared on behalf of some, but not all, of the participants, those persons must expressly agree to its disclosure; and the communication or writing must not reveal anything that was said or done or any admission that was made in the course of the mediation.  Of course if a party introduces the evidence in court that would also waive confidentiality.

 

           Can a party prepare and use evidence for the purpose of mediation and then use it at trial if the case does not settle?

                        Under the terms of Section 1122 (a) the decision whether to use the evidence or not is left to the preparer.  Parties are thereby encouraged to spend time and money in preparing for mediation in a serious effort to have the case settle.  Should it not settle, all written evidence that was prepared for the mediation can still be used by the preparer (but not by the adverse party) at trial.


                        How can I insure that a settlement agreement made in mediation will be admissible if I have to enforce it?

                        Any oral or written settlement agreement that is made during a mediation is admissible to the extent provided by Sections 1123 and 1124 in any action, proceeding, or motion for the enforcement thereof.  It is important to read and understand those sections and to follow them carefully.  The agreement should expressly state that it is admissible or subject to disclosure, that it is enforceable or binding, or “words to that effect.”  In Fair v. Bakhtiari (2006) 40 Cal. 4th 189, the Supreme Court held that an agreement which merely stated that any dispute about its terms would be submitted to arbitration was not sufficient to show an intent to be legally bound.

          Many settlement agreements that are made at the end of a mediation are in the nature of a memorandum of understanding that is handwritten on a legal pad.  They generally state that counsel will prepare a definitive agreement thereafter.  These memoranda can be sufficient to comply with the statutes so long as the necessary language in included.  It is preferable, however, to prepare the full agreement before leaving the mediation in order to avoid disagreements later about specific terms and conditions.  If that is not practicable, then a provision might be included that authorizes the mediator or another neutral to resolve any such disagreements.

 

* The author is a dispute resolution specialist who resolves cases in a wide variety of fields, including construction claims and defects, real estate matters, trusts and estates, employment, business and other civil disputes.  For further information, please see www.mpcdisputeresolution.com.  No portion of this paper may be reproduced without the permission of the author.

 

 

 



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