Introduction
In the May issue of SB Lawyer, this author explored the mediation
confidentiality issues raised in Rojas v Superior Court 102
Cal. App. 4th 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. 4th 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 4th @ 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.