In Foxgate Homeowners’ Association, Inc., v. Bramalea California, Inc., S087319, filed July 9, 2001, the California Supreme Court took a major step toward insuring that mediation will remain a valuable tool to the courts and the bar, and to the public, to resolve litigated disputes. The Court ruled that Evidence Code sections 1119 and 1121 mean what they say, and that "there are no exceptions to the confidentiality of mediation communications or to the statutory limits on the contents of mediator’s reports (to courts). Neither a mediator nor a party may reveal communications made during mediation." (Op. At 2.)

Page One of this newspaper’s July 10 edition proclaimed, "The Supreme Court’s message to mediators is, ‘Worry no more!’"

And for mediators, this may be right. The Supreme Court appears to have protected mediators from being compelled to testify – or even from testifying voluntarily – about any aspect of what took place at a mediation.

But lawyers who represent clients at mediations had best keep their champagne on ice. Because Foxgate has a loophole. Even though "a mediator may not report to the court about the conduct of participants in a mediation session," the Supreme Court has also construed the Evidence Code to mean that "a party may do so." Id.

The practical upshot? In court-ordered mediations, parties who simply do not want to settle are still subject to the vice that we thought Foxgate would eliminate: Satellite litigation over sanctions for failure to participate "in good faith" in court-ordered mediations. Foxgate leaves parties free to use their own testimony regarding "conduct," though not "communications," in a mediation, as the basis for such a sanctions motion.

In the real world of today’s take-no-prisoners litigation, some lawyers will not wait for truly egregious behavior before firing off a sanctions motion. The perceived opportunity to color a judge’s view of an opponent – erroneous though the perception may be – is enough. And what better opportunity could one side have to portray itself as the personification of wronged reasonableness than the other side’s "bad faith conduct" in a mediation? Now, these Rambo litigators will have the additional cover of Foxgate prohibiting mediators from submitting testimony which could set an erroneous record straight.

One way or another, the loophole should be closed and the prospect of endless sanctions litigation – such as the motions in Foxgate itself – should be eliminated. It’s not fair to subject parties to the risk of sanctions when they are sent to mediation against their will and then do not agree to settle. And the distinction between confidential "communications" and reportable "conduct" will prove intellectually impossible to maintain, and downright silly to enforce.

"[A] trial court may not sanction a defendant’s decision to insist on its constitutional right to a jury trial rather than settle a case, even if the trial court concludes the failure to settle was motivated by ulterior, and allegedly improper, purposes." Triplett v. Farmers Ins. Exchange (1994), 24 Cal.App.4th 1415, 1422. Yet that is just the ruling which moving parties will be seeking in their motions for sanctions for "bad faith conduct" in mediations, which Foxgate still permits.

These sanctions motions will be heard in the shadow of the courts’ perpetual struggle with overcrowded calendars and the fact that the fastest way to move cases is by getting them to settle. Many lawyers have reported to us, and our own observations confirm, that in many courtrooms, this struggle has led many judges to order virtually every case to mediation after an initial status conference. There is no inquiry as to whether the case is ripe for settlement or otherwise appropriate for mediation. It doesn’t cost the judge anything, and if the case is thrown against the mediation wall, a settlement just might stick. So off to mediation these cases go.

It’s no surprise that nothing too productive happens in many of the mediations that are compelled without any meaningful screening. And it’s also no surprise that at least one side, and often both, leaves such a mediation very, very frustrated. They view themselves as having come "in good faith," and the other side as having never even started the negotiation dance. Lawyers spent time preparing, parties may have traveled great distances or taken time off from work, and the attorney-client conversations in preparation for the mediation reactivated the traumatic events which gave rise to the litigation in the first place. The frustration these parties feel will find its natural outlet in a sanctions motion.

Foxgate’s limitation of the grounds for such motions to bad faith "conduct" rather than "communications" will scarcely limit creative counsel’s ability to bring each other before the courts. The best evidence, again, comes from this newspaper. In the July 10 article announcing the Foxgate decision. Leonard Steiner, the lawyer who brought the Foxgate sanctions motion, is reported as being "pleased with the court’s acknowledgment that mediation participants, as opposed to mediators, are free to alert judges to bad conduct by their opponents. ‘We’ll look into that and we may well do it,’ he said."

Steiner’s response, which will be echoed by scores of other frustrated litigants, should come as no surprise. For the distinction between "communications" and "conduct" is indeed without a difference. Merriam-Webster’s Online Collegiate Dictionary, for example, defines "communication" as "a process by which information is exchanged between individuals through a common system of symbols, signs or behavior." "Conduct" is defined as "the act, manner, or process of carrying on." We challenge even the most subtle legal minds to draw a difference between these concepts in the context of the sanctions motions which Foxgate seems to invite.

Worse, in Footnote 14 of its opinion (Op. At 22), the Foxgate court states that "neither section 1119 nor section 1121 prohibits a party from revealing or reporting to the court about noncommunicative conduct, ..." Yet how can "conduct" evidence "bad faith" participation in a mediation unless that conduct is intended to communicate something? "Conduct" can evidence "bad faith" participation in the mediation only if it communicates an unwillingness to participate in the mediation, or at least an unwillingness to settle. Yet this symbolic significance pushes the "conduct" into the category of "communciations," reports of which are inadmissible.

Courts have long recognized that conduct is in fact communication. In the landmark First Amendment case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the United States Supreme Court held that compulsory flag salutes in public elementary schools are unconstitutional, and acknowledged that "Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution or personality, is a short cut from mind to mind." 319 U.S. at 632.

The California constitution, too, has a "free speech" guarantee (Article I, section 2, subdivision (a)) which courts routinely apply to "expressive conduct," even though the text of the constitution refers only to "speech" and not to "conduct" at all. See, e.g., Horton Plaza Assoc. v. Playing for Real Theater, 184 Cal.App.3d 10, 18, citing Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, 910-911 (1979).

So it’s easy to see that "bad faith conduct" can be viewed as such only because of its communicative content. What if a temperamental mediation participant makes an obscene gesture, or even drops his drawers in disgust? Well, displays of nudity, even nude dancing, are routinely viewed as "expressive" conduct. Tily B., Inc., v. City of Newport Beach, 69 Cal.App.4th 1, 10 (1988). Our hypothetical "mediation mooner" is even more expressive; his conduct is no doubt intended to show complete unwillingness to settle or compromise.

Even sitting in silence and doing nothing can be expressive of that same unwillingness to settle. Compare, Wallace v. Jaffree, 472 U.S. 38 (1985) ("Moment of Silence" was symbolic and expressive conduct).

The only "conduct" worthy of the "bad faith" label earns its sanction because it is in fact a communication of an idea. And the idea which this conduct communicates in order to earn the "bad faith" label – an unwillingness to settle or compromise – is expressly exempt from punishment. Triplett, supra. It is just unfair for a court to be able to order parties to participate in mediation against their will, and then be able to sanction parties for not settling. If parties don’t want to settle, or don’t want to negotiate, they should not be ordered to mediate in the first place, and should not be required to stay at a mediation any longer than they care to be there. And they certainly should not be subject to sanctions because they would rather have a jury trial.

And so the Foxgate loophole should be closed. But it may be too much to ask litigating lawyers, charged as they are to be zealous advocates for their clients’ interests, voluntarily to refrain from bringing the sanctions motions which Foxgate still seems to allow.

Evidence Code section 1119(c) provides the answer: "All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or mediation consultation shall remain confidential." The statute does not distinguish between that which is communicated verbally and that which is communicated by the "shortcut from mind to mind" of conduct. To protect the value which the courts and the bar have found mediation to hold, courts should hold that section 1119(c) means what it says, too, and use that statute to strike mediation participants’ evidence of each other’s "bad faith conduct," and deny the anticipated sanctions motions around which that evidence will be built.