Confidential still means confidential

Beth Graham’s recent post on the “Disputing” blog, entitled “California Supreme Court Holds Attorney-Client Communications Related to Mediation Not Discoverable“, reminds us that in matters within the jurisdiction of the California state courts mediated in accordance with California law, confidential means confidential.

Ms. Graham points out that, in its January 13, 2011, Cassel v. Superior Court (PDF) opinion, “[t]he California Supreme Court held Cassel’s private communications with his attorneys related to the mediation were confidential communications protected by California’s Evidence Code and could not be discovered during a legal malpractice lawsuit between the parties.”

This extension of California’s jurisprudence on mediation confidentiality to attorney-client communications, even in cases of alleged attorney malpractice, is consistent with earlier decisions discussed on this site here (2007) and here (2008).

 

Mediation remains confidential in California

On July 21, 2008, the California Supreme Court confirmed for the third time that, in matters within the jurisdiction of California state courts, mediated in accordance with California law, confidential means confidential.

Simmons v. Ghaderi (2008) (PDF) 44 Cal.4th 570, concerned mediation of a medical malpractice suit. During mediation, the defendant’s medical malpractice insurance provider arrived at settlement terms with plaintiffs that were placed in a written settlement agreement for the parties to sign. The settlement terms were accepted by the plaintiffs both orally and in writing.  The defendant, however, revoked her consent to settle and left mediation without signing the agreement.

Plaintiff moved under Code of Civil Procedure section 664.6 to enforce what they contended was an oral settlement reached in mediation. The defendant argued that no enforceable settlement was reached because she had not signed the written settlement agreement and had withdrawn her consent to settlement. But she did not object to consideration of the evidence of what had occurred in mediation. The trial court denied plaintiffs’ motion to enforce settlement, finding that the requirements of CCP section 664.6 had not been met, and suggested that, alternatively, an enforceable oral contract may have been reached during mediation.

At trial of what was limited to the defendant’s alleged breach of a mediated oral settlement agreement, the defendant did object that California’s mediation confidentiality statutes precluded plaintiffs from proving the existence of an oral settlement agreement. But plaintiffs’ evidence of what had occurred at mediation was admitted over the defendant’s objection and the trial court concluded that plaintiffs and defendant’s agent had, indeed, entered into a valid, enforceable oral contract before the defendant withdrew her consent. The Court of Appeal affirmed the trial court’s judgment, finding that the defendant was estopped from asserting mediation confidentiality by her own failure to object and her use in pretrial motions of the evidence of what had occurred during mediation.

In reversing this decision, the California Supreme Court unanimously found that the Court of Appeal had improperly relied on the doctrine of estoppel to create a judicial exception to the statutory requirements of confidentiality in mediation proceedings. Agreeing with the Court of Appeal’s dissenting opinion that this case is more accurately described as an implied waiver by conduct case, than an estoppel case, and finding that implied waiver does not apply to mediation confidentiality, the Supreme Court held, unambiguously, that:

“Here, the mediation confidentially statutes made inadmissible all evidence of an oral contract between plaintiffs and defendant during mediation.”

Simmons v. Ghaderi (PDF) 44 Cal.4th at 588, emphasis added.

In California, confidential means confidential.

 

Copyright © 2008 by Kevin K. Forrester. All rights reserved.

Confidential means confidential

In matters within the jurisdiction of California state courts, mediated in accordance with California law, confidential means confidential.

California mediation confidentiality is defined by contract law, statutory law, and common law.

Contract law, because most mediators require parties, their attorneys and others in mediation to sign an agreement before mediation commences that includes words to the effect that:

All statements made in preparation of or during the course of this mediation are privileged settlement discussions, are made without prejudice to any party’s legal position, and are undiscoverable and inadmissible for any purpose in any legal, administrative, or other proceeding.

Statutory law, because section 1119 of the California Evidence Code states that:

Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No 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 admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

(See also Evidence Code Sections 1115 – 1128.)

And common law, because California appellate courts have held that the California Evidence Code means what it says.

Foxgate Homeowners’ Association, Inc. vs. Bramalea California, Inc. (2001) 26 Cal.4th 1, and Genoveva Rojas vs. Superior Court (2004) 33 Cal.4th 407, for example, are both early California Supreme Court opinions supporting the Legislature’s definition of mediation confidentiality. In the words of the court:

One of the fundamental ways the Legislature has sought to encourage mediation is by enacting several mediation confidentiality provisions. (Foxgate at 14.) As we have explained, confidentiality is essential to effective mediation because it promotes a candid and informal exchange regarding events in the past. This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes. To carry out the purpose of encouraging mediation by ensuring confidentiality, our statutory scheme . . . unqualifiedly bars disclosure of specified communications and writings associated with a mediation absent an express statutory exception. (Foxgate at 15.) Rojas at 415-416 (internal quotation marks omitted, emphasis added).

There are, however, and will continue to be, efforts to define, or redefine, or construe, or limit mediation confidentiality. In the recent case of William Wimsatt vs. Superior Court (2007) (PDF) 152 Cal.App.4th 137, the Court of Appeal upheld the broad standards of mediation confidentiality enacted by the California Legislature and protected by the California Supreme Court even though doing so, the court believed, may have prevented a party to the mediation from pursuing a legal malpractice lawsuit against his own attorneys. Accordingly, the Wimsatt opinion includes this comment by the Court of Appeal:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Until that day comes, or until the California Supreme Court permits the crafting of judicial exceptions to California’s statutory mediation confidentiality scheme, confidential means confidential.

(I commend to you the fine article by attorney Michael Young entitled Mediation Gone Wild chronicling the consequences of breaching mediation confidentiality in another jurisdiction.)

Copyright © 2007 by Kevin K. Forrester. All rights reserved.