Introduction

In the May issue of SB Lawyer, this author explored the mediation confidentiality issues raised in Rojas v Superior Court 102 Cal. App. 4^th 1062 (2002) [review granted 1/15/2003], the thoughtful dissent filed by Justice Perluss and a Jeffery Krivis article, “It’s Alright Ma, I’m Only Bleeding,” ¹ which condemned the Rojas ‘raw evidence’ attorneys’ work product analysis that would allow trial court examination, in camera , of documents prepared for and/or used in mediation.

Two of California’s largest mediator associations, ‘California Dispute Resolution Council’ (CDRC) and ‘Southern California Mediation Association’ (SCMA) have published opposing views on whether mediation confidentiality is ‘absolute.’

CDRC and Krivis have each argued passionately that the core values of mediation require an ‘absolute’ confidentiality standard be applied to all evidence prepared for or used in the mediation process, while SCMA argues the opposite view. It raises the specter of unscrupulous parties and/or attorneys who would intentionally use evidence in mediation as a shield against its use in later litigation. A new case, Eisendrath, addresses the question of whether a mediator can be deposed in a dispute about the wording of a settlement agreement and whether a communication occurring in the mediation process between only the parties and not the mediator can be waived by the parties alone, i.e., without the mediator’s consent.

The CDRC-Krivis Position

In a December 2, 2002 letter from CDRC supporting Supreme Court review of Rojas, CDRC forcefully urged that Evidence Code, section 1119, which provides for protection of evidence prepared for and/or used in mediation, provides ‘absolute’ confidentiality, and the trial court is not empowered to conduct an in camera review of evidence to determine whether it is ‘raw’ evidence and thus subject to discovery.

CDRC supported its argument to the high court based upon the idea that mediation is vulnerable to corruption unless participants can be and are encouraged to be completely candid. The threat that evidence prepared for mediation may be used later, offers a strong potential for “fear which inspires posturing and pretense and obstructs the negotiated settlement of disputes.”

CDRC added that Rojas, by allowing in camera review to probe for ‘raw evidence,’ would “temper what [parties and counsel] do to prepare for mediation and what they submit in mediation in light of the potential for it becoming admissible in evidence or discoverable by third parties.”

In the article referenced above, Jeffrey Krivis, a well-known mediator in Southern California, argued that the threat of using evidence prepared for mediation would undermine the ‘core of mediation,’ as it depends upon the “free exchange of information.” He stated, ”Parties will now fear that information presented at mediation can and will be used in later litigation, resulting in an obvious reduction in the amount of information that is ultimately disclosed during a mediation session. This reduction translates into less talk and more posturing between the parties.”

Krivis added that the power of individual trial judges to conduct balancing tests to determine what information is discoverable in the same way they determine what information is protected by the attorney work product privilege, “opens up Pandora’s box to abuse by sympathetic trial judges.”

The Amicus Brief by SCMA

On May 20, 2003, SCMA filed an amicus brief in Rojas, which was signed by Wendy Lascher, Ventura appellate specialist, and Jeff Kichaven, a fulltime neutral practicing in Southern California and SCMA board member.

In what surely sent shock waves through the mediation community, SCMA’s brief takes the opposite view regarding ‘absolute’ confidentiality. The brief set forth the perspective that absolute protection from review would allow unscrupulous attorneys or parties to participate in mediation for the undisclosed purpose of being later able to declare that evidence used in mediation, but which later became unfavorable, is not admissible or discoverable because it was ‘prepared for mediation.’

SCMA supports its argument based upon the reality that in many cases, mediation is part of a continuum that includes elements of negotiation and litigation, i.e. the mediation itself resembles a ‘mini-trial’ or ‘mock trial.’ ² In the litigated-mediation case, there is no clear distinction between facts learned, prepared and/or produced for various events along that continuum whether in mediation, a settlement conference, discovery or trial. In other words, SCMA argues that mediation must not become “a tool to bury unfavorable evidence.”

Adding an unusual twist, SCMA points out that the case management order demanded that the parties engage in mediation and that each session would be deemed a ‘mandatory settlement conference.’ SCMA points out that the Evidence Code sections creating mediation confidentiality exempts from its protection information exchanged at a mandatory settlement conference. (Evidence Code, section 1117(b)(2).)

Along the same line of reasoning, SCMA urged the Supreme Court to carefully review the part of the Rojas case management order, in which the trial judge empowered the same person to act as ‘mediator’ and ‘special master to resolve all discovery disputes.’ SCMA finds this inherently coercive as a ‘mediator’ vested with neutrality for the purposes of mediation should not also have the power to made important decisions that may affect the litigation process. Such combined powers allow for “supervisory—and even coercing—power over the litigation.”

Last, SCMA argues that Evidence Code, section 1119, is best interpreted to provide confidentiality only for evidence prepared for and/or used in mediation, if from the outset it is declared by the proponent to be protected from later use in litigation. Without such an agreement, SCMA would extend the ban its later use at trial. SCMA adds that this construction of section 1119 would ‘best protect the integrity of litigation, and is fair.” By comparison, hybrid materials prepared for and/or used in negotiation and/or litigation but also used or referred to in mediation would, according to other rules, continue to be subject to discovery and/or introduction into court proceedings as if it were never introduced into the mediation process.

Eisendrath v. Superior Court

In Eisendrath v. Superior Court, 109 Cal.App. 4^th 351 (May 30, 2003), the 2nd District panel of Curry, Vogel and Hastings, held that a trial court committed error when it ordered a mediator to be interviewed in camera , after he was subpoenaed to testify at a deposition regarding an alleged drafting error contained in a written settlement agreement. Eisendrath upholds the rule that mediators, as well as judges and arbitrators, are incompetent to testify about the proceedings in which they presided. (Evid. Code, section 703.5.)

Eisendrath also holds that Evidence Code, section 1119(a), which provides confidentiality for communications within mediation proceedings, cannot be waived absent the express consent of the parties and the mediator.

What is interesting is that Eisendrath finds where the parties have a communication during the mediation process, but which does not occur with a joint session, that those parties may waive confidentiality for that communication. (Evidence Code, section 1122(a)(2).) Obviously, if one party wants to waive confidentiality, the other party has significant power over whether this evidence will be admissible. Eisendrath finds, however, that the “Legislature considered these limitations on the presentation of evidence when it enacted the statutory scheme.” (109 CA 4^th @ 366.)

Conclusions

While lawyers, mediators, parties and judges can take heart in Foxgate’s clear support for mediation confidentiality, there still remains considerable uncertainty.

If the CDRC position prevails in Rojas, absolute confidentiality will be applied to evidence prepared for and/or used in mediation, and trial courts will not be able to conduct in camera inspections to determine what is or is not ‘raw’ evidence.

If SCMA’s position wins the day, there will be no absolute confidentiality applied to mediations, as it might allow the unscrupulous to manipulate the process. Thus, ‘raw’ evidence prepared for and/or used in mediation will be subject to trial court in camera review and potentially available for use in the litigation.

If Eisendrath stands, mediators will be protected from having to disclose first to judges in camera about mediation communications. However, parties can decide to waive confidentiality, even if the mediator refuses, so long as the communication occurred outside the presence of the mediator and it does not refer to anything said when the mediator was present.

A lot of confusion regarding physical evidence introduced at mediation or a settlement conference can be avoided if counsel obtains a clear understanding from all concerned about the future admissibility of the evidence.

As for communications in mediation but outside the presence of the mediator, what happens when there are multiple parties to the mediation, who at different times have separate communications involving some but not all of the other parties? Will some of these communications be able to be used in evidence so long as only the participants agree, even if other parties, who were not present, object?

One thought is that before the settlement conference or mediation begins, parties and counsel, and the court if necessary, should discuss the various expectations of the parties and mediator and/or settlement master regarding confidentiality, and where possible, reduce this understanding to a written agreement.