California lawyers say mediation confidentiality is in jeopardy

Lawyers in California warn that a ruling by the state appellate court holding that raw evidence prepared for and used in mediation is not confidential could undermine use of the process.

In October 2002, the California Court of Appeal, Second District, held that raw materials prepared for mediation

of a construction dispute were subject to discovery because Sections 1119 and 1120 of the California Evidence Code, which protect mediation communications from disclosure in subsequent proceedings, did not apply to factual material or raw evidence prepared for mediation. Now, in Genoveva Rojas v. Los Angeles Superior Court, attorneys representing the real party in interest in that case are pressing California's Supreme Court to reaffirm that documents prepared for mediation are confidential.

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The case arose when tenants in an apartment complex raised concerns about water leakage and mold in the buildings. After Julie Coffin, the owner of the complex, sued the builders for construction defects, the court issued a case management order that called for the parties to mediate their dispute. The case settled and the parties' settlement agreement provided that its terms were confidential, and that air samples and other work by consultants would be confidential. Later, the tenants sued Coffin and the developer. During discovery they sought to obtain materials produced in the mediation between the owner and the developer. The trial court ruled that documents submitted "in compilation form" for the mediation were privileged under the state Evidence Code. The tenants appealed and the appeals court reversed, holding that the privilege only applies to "negotiations, communications, admissions, and discussions designed to reach a resolution of the dispute" through mediation.

Coffin's brief to the Supreme Court of California argues that since the mediation privilege was designed to encourage mediation it should he broadly interpreted, and that to hold otherwise would "contravene" the legislature's intent. Coffin's attorney, Robert C. Risbrough, of Watten, Discoe, Bassett & McMains in Santa Ana, said that if the Rojas ruling is allowed to stand, parties could "never be sure documents would be privileged."