Statutory Exceptions to Mediation Confidentiality Moving Forward
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Draft Legislation re Proposed Evidence Code § 1120.5
California has long favored private negotiation and settlement of civil disputes. The state legislature has expressly stated that “[t]he peaceful resolution of disputes in a fair, timely, appropriate, and cost-effective manner is an essential function of the judicial branch of state government.” Cal. C. Civ. Proc. § 1775(a). To effectuate this policy, the state legislature has expressly validated mediation as a process that “provides parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes and a great opportunity to participate directly in resolving those disputes.” Cal. C. Civ. Proc. § 1775(c). Because mediation provides a simple, quick, and economical means of resolving disputes, and because it may also help reduce the court system’s backlog of cases, California has recognized that the public has an interest in protecting not only the mediation participants, but the mediation process itself. Rojas v. Superior Court, 33 Cal. 4th 407, 415 (2004).
Under California law, confidentiality protection is provided in the form of an evidence exclusion provision. It does not provide for an evidentiary privilege. Evidence Code section 1119 bars – as evidence in a court or other adjudicatory proceeding – disclosures of
- anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation (Cal. Evid. C. § 1119(a));
- any writing prepared for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation (Cal. Evid. C. § 1119(b)); and
- all “communications, negotiations, or settlement discussions” by and between participants in the course of a mediation or mediation consultation. Cal. Evid. C. § 1119(c).
The California Supreme Court has confirmed on several occasions that the “any” and “all” provisions of Section 1119 are to be interpreted quite literally and made it clear that the scope of protection intended by the statute is unqualified, clear and absolute, and is not subject to judicially crafted exceptions or limitations. See, Foxgate Homeowners Ass’n v. Bramalea Calif., Inc., 26 Cal. 4th 1, 14 (2001); Rojas, supra, 33 Cal. 4th at 424; Fair v. Bakhtiari, 40 Cal. 4th 189, 197 (2006); Simmons v. Ghaderi, 44 Cal. 4th 570, 588 (2008); Cassel v. Superior Court,51 Cal. 4th 113, 124 (2011).
The fact circumstances of the cases in which the California Supreme Court has been called upon to rule about the scope of protection afforded by Section 1119 have been somewhat extreme and serve to illustrate the breadth of what will be held as confidential if the communications occurred during a mediation. However, it is the Court’s decision in Cassel that has served as the catalyst for the campaign to enact statutory exceptions to California’s broad confidentiality protections largely because it involved the special, fiduciary relationship between attorney and client.
In 2011, the California Supreme Court decided Cassel v. Superior Court, 51 Cal. 4th 113 (2011), in which it upheld the broad, unconditional scope of the mediation confidentiality protections afforded by Evidence Code § 1119. In an underlying litigation dispute, Cassel was the plaintiff and, during a mediation, agreed to settle his claims. He then sued his attorneys for malpractice and related claims, asserted that they provided bad advice during the mediation and were both deceptive and coercive towards him during the mediation. All of the alleged wrongdoing occurred when Cassel and his attorneys were alone, and not in the presence of the mediator or other mediation participants. The Supreme Court held that the trial court properly granted motions in limine precluding Cassel from introducing any evidence which arose during the mediation, leaving Cassel with no evidence to prove his case.
[It is interesting to note that while Cassel was precluded from introducing evidence at trial of what was said during or in connection with the mediation, he was not precluded from developing that evidence in the form of detailed deposition testimony or asserting his version of what happened during mediation in numerous pleadings.]
The attorney-client context in which the scope of mediation confidentiality was tested not surprisingly invited a firestorm of negative publicity and public opinion. In response, Assemblyman Gorell introduced AB 2025 in 2012, which proposed to create an exception under Evidence Code § 1124 for “evidence of legal malpractice, breach of fiduciary duty or State Bar disciplinary action.” As proposed, the bill still barred the attorney from introducing testimony by other participants (such as the adverse party and the mediator) to defend against the malpractice claims. As such, the attorney could not show that the ultimate settlement was the result of information obtained from the mediator or the adverse party because these communications remained inadmissible. AB 2025 passed the Assembly in 2012, but then stalled in the Senate Rules Committee. When Gorell was unsuccessful in negotiating a compromise bill in the Senate, the matter was referred to the California Law Revision Commission (CLRC) to analyze the issue and make a recommendation.