Magazine article Dispute Resolution Journal

Commercial: Confidentiality in Mediation

Magazine article Dispute Resolution Journal

Commercial: Confidentiality in Mediation

Article excerpt

The Supreme Court of California held that there are no judicially created exceptions to the statutory protections for the confidentiality of mediation communications or to the statutory limits on the contents of mediators' reports. Thus, neither a mediator nor a party may reveal communications made during court-ordered mediation.

In this construction defects litigation the court appointed Judge Smith, retired, to act both as the mediator and as special master for rulings on discovery. The parties were ordered to make their best efforts to cooperate in the mediation process. The parties were notified that there would be a five-day round of mediation sessions and that they should bring their experts. The defendant's attorney arrived late for the first session and did not bring any defense experts. The mediator concluded that the mediation could not proceed without them and cancelled the remaining sessions.

The plaintiff moved for sanctions against the defendant for failure to cooperate in the mediation. Two days later, Judge Smith filed a report with the court, which stated, inter alia, that the defendant's attorney spent the "vast majority of his time trying to derail the mediation" and refused to bring any experts. The court denied the motion for sanctions without prejudice. Thereafter, one mediation session was held before a new mediator, who reported to the court that further sessions would be unproductive. The plaintiff responded with a second motion for sanctions. This motion, which relied on Judge Smith's earlier report, was granted over the defendant's objections that the Smith report violated state law making anything said during mediation inadmissible and undiscoverable.

The California Court of Appeal concluded that a literal interpretation of this statute would lead to an absurd result or fail to carry out the legislative purpose. …

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