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MEDIATION: ON CONFIDENTIALITY - The Rojas Decision
by Charles B. Parselle
Mediators are now under a duty, set forth in the new Rule1620.4 of the Rules of Court, to “provide the participants with a general explanation of the confidentiality of mediation proceedings.”
Complying with this duty may not be that easy, in the light of Rojas v Superior Court, certified for publication by the Court of Appeal, Second District, in October, 2002, Docket #B158391.
The mediator’s personal position is clear: first, he must keep all confidential communications confidential [CRC 1620.4(c)]; secondly, he is not competent to testify in any subsequent proceeding [Evidence Code, section 703.5, subject to the four limited exceptions set forth in that section], or to make any report to a court concerning the mediation, except the mandated Statement of Agreement or Non-agreement [EC 1121].
The provisions of EC 1119 and 1121 were tested in Foxgage Homeowners Assn. v Bramalea California, Inc. (2001) 26 Cal. 4th 1, a case in which the mediator had submitted to the court a report setting forth his view of the bad faith conduct of one of the parties. The Supreme Court held: “The language of sections 1119 and 1121 is clear and unambiguous…Section 1119 prohibits any person, mediator and participants alike, from revealing any written or oral communication made during mediation. Section 1121 also prohibits the mediator, but not a party, from advising the court about conduct during mediation that might warrant sanctions. It also prohibits the court from considering a report that includes information not expressly permitted to be included in a mediator's report. The submission to the court, and the court's consideration of, the report of [the mediator] violated sections 1119 and 1121.”
This decision seemed clearly to affirm the confidentiality of the mediation process.
The confidentiality of written or oral communications during the mediation process is set forth at EC 1119, which says in subsection (a) that no evidence of anything said or any admission made in the course of a mediation is admissible or subject to discovery, and in (b) that no writing prepared for the purpose of a mediation is admissible or subject to discovery.
However, there is an exception to EC 1119, set forth at EC 1120, which says that evidence otherwise admissible or subject to discovery outside of a mediation shall not become protected from disclosure solely by reason of its use in a mediation.
In Rojas, the purchaser of an apartment complex sued the developers alleging numerous construction defects leading to toxic infestation. That litigation went to mediation and settled. The court’s Case Management Order providing for the mediation required specified documents to be held in a document repository; the preparation of a defect list; the final defect list, after a “meet and confer” of the parties’ experts, to contain the type, extent and location of defects, etc., and a report setting forth in detail the necessary repairs and specific costs of each repair.
Subsequently, some of the tenants of the apartment complex sued both the owner and the developers for health problems caused by the toxic infestation. By the time of the second action, the toxic infestation and the conditions causing it had been remedied; the physical evidence no longer existed.
The plaintiffs sought discovery of the documentary evidence of the defects in the first action. The defendants resisted on the grounds that all such evidence constituted writing “prepared for the purpose of, in the course of, or pursuant to, a mediation” and was therefore “not admissible or subject to discovery,” as set forth in EC 1119(b).
The issue went to the Court of Appeal, which found in favor of plaintiffs, concluding that “the language of sections 1119 and 1120 is clear and unambiguous and that the plain language of the statute’s privilege from disclosure does not apply to ‘evidence.’ Rather, sections 1119 and 1120 are meant to protect the substance of mediation, i.e. the negotiations, communications, admissions, and discussions designed to reach a resolution of the dispute at hand. These statutes do not protect pure evidence.”
The court also describes “pure” evidence as “hard” evidence and “raw” evidence, and elaborated that “mediation confidentiality is meant to protect the substance of the negotiations and communications in furtherance of the mediation, not the factual basis of those negotiations. Thus, even if evidence is used or introduced in the mediation, it is not protected.”
What about the work product privilege in connection with documents prepared for the mediation? The court found that the mediation privilege is co-extensive with the work product privilege. Therefore, “test data that is in a chart that in any fashion indicates the attorneys’ or parties’ evaluation of the case or their negotiation posture, [it] is protected. However, to the extent such test data may be extrapolated from the chart and given to petitioners, it must be produced. Such determinations shall be made by the trial court after a careful in camera review of the materials.”
Does this ruling simply reiterate the “clear and unambiguous” language of sections 1119 and 1120 of the Evidence Code, without interfering with the mediation privilege, as thought by the majority? Jusice Dennis Perluss thought otherwise in a somewhat blistering dissent: “Divining a distinction between “derivative” and non-derivative” materials nowhere found in the statutory scheme and acknowledging only a qualified protection from disclosure even for concededly privileged materials, the majority has now effectively eradicated any significance from the mediation privilege in California.”
Because Rojas has an unusual fact pattern, what effect it might have on the openness of mediation proceedings remains to be seen. The defendants in Rojas were both of the parties in the underlying litigation, against whom the plaintiffs in the second action, who were tenants of the apartment complex, alleged conspiracy to conceal the defects and microbe infestation from them; indeed, the court specifically sets out part of confidentiality agreement between them, in which the parties in the first case mutually agreed that “all parties…shall not take any action to facilitate…any claims by any tenant…” Generally, additional litigants are not waiting in the wings, so to speak, to take advantage of the evidence collected by others, and generally, the parties have already exchanged the information they need by way of discovery before commencing mediation, so that the mediation process itself does not generate any new evidence.
Nonetheless, the requirement now laid on mediators to provide participants with “a general explanation” of the confidentiality of mediation proceedings must take into account the Rojas decision. A simple statement in compliance might be as follows: “This mediation is subject to the confidentiality provisions contained in Evidence Code, sections 1119 and 1120, and other relevant provisions of law, as interpreted by the courts.” Not very helpful, yet the law on mediation confidentiality is now quite complicated and it not the mediator’s role to give advice on the law. The best advice one might give informally is: “Anything you say to me in confidence will be held in confidence. But in joint session don’t say where the body is buried unless you want the other side to know where the body is buried. To be better informed, read Evidence Code 1115 through 1128, and Rojas.”
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