Calblog

How Confidential is Mediation?

The Rojas case is the newest wrinkle in mediation law. In Rojas, the California Court of Appeal ruled that "raw data" evidence introduced in mediation is not confidential but evidence such as charts which are prepared just for the mediation are confidential. The opposing viewpoint is that anything in mediation is confidential -- period, end of story. The case has gone to the California Supreme Court.

The Southern California Mediation Association has filed its first ever amicus brief in favor of the Court of Appeal holding. The press release by SCMA calls its own position counter-intuitive but says it is necessary to preserve the integity of mediation by preventing the abuse of the mediation process. Actually, I never considered the position counter-intuitive. I long ago incorporated into my opening instructions a statement that while mediation is a confidential process, parties could not expect to hide otherwise discoverable evidence by bringing it up in mediation. It was mediation itself which is confidential and no one could point to mediation or discussion therein as evidence of anrything but if there were later proper discovery requests for the same information, it came out just as if there had not been a mediation. (The facts in Rojas are of course more complicated than usual.)

However, an interesting controversy has arisen, as some of the members of SCMA are 1. surprised that the board took this position and 2. not in agreement with the position. Stay tuned.