Second Appellate District Court of Appeal: Published civil case highlights Mediation confidentiality of products originating from mediation

Mediation confidentiality is codified in Evidence Code section 1115 et seq.3 “With specified statutory exceptions, neither ‘evidence of anything said,’ nor any ‘writing,’ is discoverable or admissible ‘in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which . . . testimony can be compelled to be given,’ if the statement was made, or the writing was prepared, ‘for the purpose of, in the course of, or pursuant to, a mediation . . . .’ ” (Cassel v. Superior Court (2011) 51 Cal.4th 113, 117 (Cassel), quoting § 1119, subds. (a), (b).) Even after mediation ends, communications and writings protected by the statutes are to remain confidential. (§ 1126.)

Our Supreme Court has broadly applied the mediation confidentiality statutes and all but categorically prohibited judicially crafted exceptions, even in situations where justice seems to call for a different result. (Cassel, supra, 51 Cal.4th at p. 118; see Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 152 (Wimsatt).) “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” (Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 15 (Foxgate); accord, Rojas v. Superior Court (2004) 33 Cal.4th 407, 416; Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194.) “Judicial construction, and judicially crafted exceptions, are permitted only where due process is implicated, or where literal construction would produce absurd results, thus clearly violating the Legislature’s presumed intent. Otherwise, the mediation confidentiality statutes must be applied in strict accordance with their plain terms. Where competing policy concerns are present, it is for the Legislature to resolve them.” (Cassel, at p. 124; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 582-583; Foxgate, at pp. 14-17.)


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