The Parameters of Mediation Confidentiality in California

The Parameters of Mediation Confidentiality in California
By Candace L. Matson, Sheppard Mullin Richter & Hampton LLP, Los Angeles
Candace L. Matson is a partner in the Real Estate, Environmental and Construction Practice Group of Sheppard Mullin’s Los Angeles office where she specializes in construction law. She can be reached at CMatson@sheppardmullin.com.

Statutory Scheme
There has been no major legislation in California involving mediation since the current set of statutes, Evidence Code 1115 et seq., was adopted in 1997 (see Footnote). Effective in 2008, the Judicial Council of California has adopted revisions to Rule 3.1380 relating to mandatory settlement conferences which does touch on mediation and mediation confidentiality.

Governing Case law
Until the Judicial Council stepped in with its revisions to Rule 3.1380, recent developments in the area of mediation confidentiality have all emanated from the courts.

These are the cases in this century to date that address mediation confidentiality:

• Foxgate Homeowners Association v. Bramalea California, 26 Cal. 4th 1 (2001) – no judicial exceptions to mediation confidentiality
• Eisendrath v. Superior Court (Rogers), 109 Cal. App. 4th 351 (2003) – waiver of mediation confidentiality must be express, not implied
• Rojas v. Superior Court (Coffin), 33 Cal. 4th 407 (2004) – derivative materials (e.g., photos, witness statements, raw test data, etc.) which qualify as writings under Evid. Code § 250 are protected if prepared pursuant to mediation
• Travelers Casualty v. Superior Court (Roman Catholic Diocese of Orange),
126 Cal. App. 4th 1131 (2005) – mediation confidentiality applies to voluntary judicial settlement proceedings and protects all mediation participants (i.e., not just parties)
• In re Doe 1 v. Superior Court (Doe 1), 132 Cal. App. 4th 1160 (2005) -- mediation confidentiality applies to voluntary judicial settlement proceedings
• Stewart v. Preston Pipe, Inc., 134 Cal. App. 4th 1565 (2005) – settlement agreement could be disclosed because contained "magic language" of Evid. Code § 1123; attorney can waive mediation confidentiality on behalf of her client
• Fair v. Bakhtiari, 40 Cal. 4th 189 (2006) – settlement agreement protected from disclosure because did not contain "magic words" of Evid. Code § 1123
• In re Marriage of Kieturakis, 138 Cal. App. 4th 56 (2006) – any error in trial court admitting mediation communications was harmless because plaintiff wife would have to waive confidentiality to prove her case
• Simmons v. Ghaderi, 143 Cal. App. 4th 410 (2006),
review granted, 53 Cal. Rptr. 3d 317 (12/20/06) – party can be estopped from claiming mediation confidentiality based on her conduct
• Wimsatt v. Superior Court (Kausch), 152 Cal. App. 4th 137 (2007) – written communications pertaining to a mediation are confidential even when made outside the mediator’s presence or the mediation itself
• Houck Construction v. Zurich Specialties, et al., No. CV 06 3832 AG(PLAX),
2007 WL 1739711, *1 (C.D. Cal. 6/4/07) – mandatory settlement conference is the equivalent of mediation and subject to mediation confidentiality

Amended Rule of Court 3.1380
Evidence Code Section 1117 expressly states that the chapter concerning mediation does not apply to mandatory settlement conferences. Nevertheless, perhaps in deference to the Supreme Court’s broad application of mediation confidentiality, several courts have held that mandatory settlement conferences or similar settlement procedures are subject to such confidentiality.

In responding to another case involving court-ordered mediation, but not mediation confidentiality, the Judicial Council now has made it abundantly clear that mediation confidentiality does not apply to mandatory settlement conferences. At subdivision d, it mandates that “[a] court must not:
(1) Appoint a person to conduct a settlement conference under this rule at the same time as that person is serving as a mediator in the same action; or
(2) Appoint a person to conduct a mediation under this rule.

The Judicial Council observed that “simultaneous service in dual capacities is of the greatest concern. . . . [W]hen a person is appointed to serve simultaneously as a mediator and settlement facilitator, it is not clear if any of the communications that occur during the process conducted by this person are covered by mediation confidentiality.” (Judicial Council Report, September 18, 2007.) To foreclose any doubt on the subject, the Advisory Committee Comment states, “The special confidentiality requirements for mediations established by Evidence Code sections 1115-1128 expressly do not apply to settlement conferences under this rule.” Given this amendment and the comment which follows, it seems unlikely that future courts will hold mediation confidentiality applies to mandatory settlement conferences.

What is Protected
So what do the above-referenced cases tell us is protected by mediation confidentiality? Generally, confidentiality applies to any written or oral communication “made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation . . .” Rojas, 33 Cal. 4th 407, 416-417 (citing Evidence Code § 1119); see also Wimsatt, 152 Cal. App. 4th at 160 (“Mediation confidentiality protects communication and writings if they are materially related to, and foster, the mediation.”), In re Doe 1, 132 Cal. App. 4th at 1167 n.6 (mediation confidentiality protects writings prepared “to foster the mediation process”).

Specific Protections
Pursuant to the case law previously mentioned, it is clear that absent the express consent to disclosure by all mediation participants (i.e., not just parties), the following will be protected from disclosure under mediation confidentiality rules:

• Mediation briefs and written communications concerning mediation briefs which are “materially related to the mediation.” Wimsatt
• Communications between mediation participants, including outside the presence of the mediator, provided such communications are “materially related to the mediation.” Eisendrath.
• Writings, including “derivative material,” prepared “for the purpose of, in the course of, or pursuant to, a mediation.” Evid. Code 1119; Rojas
• Mediators’ reports, assessments, evaluations, recommendations, or findings – except “a report that is mandated by court rule or other law and that states only whether an agreement was reached . . .” Evid. Code § 1121; Foxgate.
• Settlement agreements that do not contain the “magic words” of section 1123. Fair.

What is Not Protected
The following are not protected by mediation confidentiality:
• Facts known to percipient witnesses or underlying writings prepared for mediation (e.g., physical samples of mold). Evid. Code § 1120; Rojas.
• “[E]xpected litigation posturing that occurs in most civil litigation.” – Wimsatt, 152 Cal. App. 4th at 160 (e.g., discussions of discovery, liability, settlement ranges, etc.).
• Written settlement agreements that contain the “magic words” of Section 1123(b), e.g., “Pursuant to Evidence Code Section 1123(b), this settlement agreement is enforceable, binding and admissible in a court of law.” Stewart.

Exceptions
There are no exceptions to the applicability of mediation confidentiality except those that are statutory. The California Supreme Court has made it clear that mediation confidentiality is applied broadly despite harsh results.

Further, there is no “good cause” exception. There are two earlier “rogue” cases that lawyers frequently invoke in an effort to circumvent mediation confidentiality. In Rinaker v. Superior Court (The People), 62 Cal. App. 4th 155 (1998), the owner of a vandalized car brought a civil harassment action against two minors which settled in mediation. Thereafter, the minors were charged in a delinquency proceeding for the same vandalism. The minors successfully sought to compel the mediator to testify that in the mediation, the victim admitted he had not seen who committed the vandalism. Subsequent courts have restricted this case narrowly to its facts. “Rinaker is consistent with our past recognition and that of the United States Supreme Court that due process entitles juveniles to some of the basic constitutional rights accorded adults, including the right to confrontation and cross-examination.” Foxgate, 26 Cal. 4th at 16. “To deny the minors access to the information would have denied them their constitutionally protected rights.” Wimsatt, 152 Cal. App. 4th at 162.

In Olam v. Congress Mortg. Co., 68 F. Supp.2d 1110 (N.D. Cal. 1999), the testimony of the mediator was found to be essential to doing justice and admissible where plaintiff contended agreement reached in mediation was not enforceable because she “was incapable (intellectually, emotionally, and physically) of giving legally viable consent.” Id. at 1118. This case is distinguishable because the defendant had agreed to a limited waiver of confidentiality covering the key facts to be addressed.

Summary
Anything prepared for the purpose of, in the course of, or pursuant to mediation is protected from discovery and not admissible absent express waiver (or possibly under circumstances giving rise to estoppel -- depending on how the California supreme court rules in Simmons). That includes a settlement agreement arising out of mediation that does not have the “magic language” of Section 1123, even if it renders the agreement unenforceable. Materials prepared for use in mandatory settlement conferences, however, are not subject to the protection of mediation confidentiality.

Footnote
The statutes governing mediation confidentiality are found in the Evidence Code at sections 703.5 and 1115 et seq. The following is a brief identification of those statutes:

Evid. Code § 703.5: Mediator competence to testify
Evid. Code § 1115: Definitions of "mediation," "mediator," etc.
Evid. Code § 1116: Limitations
Evid. Code § 1117: Applicability of chapter
Evid. Code § 1118: Oral settlement agreement defined
Evid. Code § 1119: Confidentiality, nonadmissibility, nondisclosure
Evid. Code § 1120: Non-effect on evidence otherwise discoverable and/or admissible
Evid. Code § 1121: Mediator’s reports, conclusions
Evid. Code § 1122: Express waiver of confidentiality
Evid. Code § 1123: Conditions for disclosure and admissibility of written settlement agreement
Evid. Code § 1124: Conditions for disclosure and admissibility of oral settlement agreement
Evid. Code § 1125: End of mediation defined
Evid. Code § 1126: Continuing confidentiality
Evid. Code § 1127: Sanctions against person seeking to compel mediator testimony or production of writings
Evid. Code § 1128: No reference to mediation in trial