Mediation Statutes
Evidence Code sections 700-704, Competency of Witnesses
Evidence Code sections 1115-1128, Mediation
Selected Cases On Mediation Confidentiality
Stewart v. Preston Pipeline, Inc. (2005) 134 Cal.App.4th 1565, 36 Cal.Rptr.3d 901
In proceedings to enforce a settlement, an agreement signed at the conclusion of a mediation satisfied the statutory requirements for waiver of mediation confidentiality. The Court held that the agreement, which was signed by plaintiff, plaintiff’s attorney, and defendants’ attorney, was a valid contract that was enforceable even absent the defendants’ signatures.
Travelers Casualty & Surety Co. v. Superior Court (2005) 126 Cal.App.4th 1131, 24 Cal.Rptr.3d 751
Settlement judge in clergy sexual abuse cases exceeded his authority and abandoned his role as neutral faciliator, making factual findings which effectively rendered the mediation process coercive.
Rojas v. Superior Court (2004) 33 Cal.4th 407, 15 Cal.Rptr.3d 643
Statutory privilege for any “writing” prepared during the mediation process applied to witnesses’ statements, analyses of raw test data, and photographs prepared during mediation of a construction dispute between owners and builders of apartment complex, and thus, such materials were not discoverable in tenants’ subsequent litigation against those parties.
Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 134 Cal.Rptr.2d 716
Unlike statutory or common law privileges, mediation confidentiality is not subject to implied waiver.
Foxgate Homeowner’s Assn. v. Bramalea California, Inc. (2001) 26 Cal 4th 1, 108 Cal. Rptr. 3d 751
To encourage mediation confidentiality, Evidence Code sections 1119 and 1121 unqualifiedly bar disclosure of communications made during mediation absent an express statutory exception.
Rinaker v. Superior Court (1998) 62 Cal.App.4th 155; 74 Cal.Rptr.2d 464
In juvenile delinquency proceedings, the statutory ban on disclosure of mediation communications must yield to the constitutional rights to confront and cross-examine prosecution witnesses. The juvenile court was directed to conduct an in camera examination of a mediator’s potential testimony, and to determine whether that testimony was necessary to vindicate the constitutional rights at issue.
