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What Happens in Mediation, Stays in Mediation: 13 Key Confidentiality Questions

One of the strengths of mediation is its cloak of confidentiality. Participants can feel free to say what they want and show documents prepared for mediation without the fear of it biting them later in the litigation. But not everything said and shown in mediation is protected. As with everything else, know the limits of mediation confidentiality.

As the Associated Press reports, a Hewlett Packard shareholder suit is trying to get company records relating to the abrupt departure of former CEO Mark Hurd. Among these records is a letter sent to Hurd from celebrity attorney Gloria Allred on behalf of Jodie Fisher, an actress who accused Hurd of sexual harassment. Hurd is fighting the letter’s disclosure, suggesting it would violate California laws on the confidentiality of mediation in legal disputes. Mediation confidentiality is broad in California, but does it cover this letter?

The protection of California’s mediation confidentiality scheme is definitely far-reaching: “Except as otherwise provided” in the Evidence Code chapter on mediation, Evidence Code §1119(a)-(b) makes inadmissible and protects from discovery

  • anything said or admitted “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation”, and
  • any writing “prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation.”

In addition, Evid C §1119(c) makes confidential “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation.”

But there’s a major limitation: Mediation confidentiality covers words said and documents prepared for the mediation, but not those simply used in the mediation. Disclosure of documents in a mediation that were not “prepared for the purpose of, in the course of, or pursuant to, a mediation” are not imbued with confidentiality. See Evid C §§1119(b), 1120(a); Kullar v Foot Locker Retail, Inc. (2008) 168 CA4th 116, 131, 85 CR3d 20.

We can only speculate as to the letter involved in the HP CEO’s case, but presumably it was not created for the mediation and would thus not fall under mediation confidentiality. But maybe his lawyers will come up with another way to protect against its disclosure.

If you find yourself facing a mediation confidentiality question, analyze it by first looking at the language of the mediation confidentiality statutes. Ask yourself these 13 questions to help with your analysis:

  1. Do the mediation confidentiality rules (Evid C §§1115-1128) apply to the dispute between the parties (e.g., general civil litigation)?
  2. Was there a mediation or mediation consultation (Evid C §1115(a), (c))? If so, when did the mediation or mediation consultation begin and end?
  3. Is the item of evidence at issue a statement or admission that falls within Evid C §1119(a), or a writing as defined by §§1119(b) and 250?
  4. Was the evidence prepared for the purpose of a mediation or mediation consultation, in the course of a mediation or mediation consultation, or pursuant to mediation or mediation consultation?
  5. Is it evidence of the underlying facts of the litigation, which are not protected by Evid C §1119?
  6. Is it evidence that was prepared outside the mediation and merely used in the mediation, so that it falls under the limitation of Evid C §1120?
  7. Is it evidence that was prepared outside the mediation and was then combined with evidence that was prepared for the mediation (e.g., amalgamated materials under Evid C §1120(a))?
  8. Do other express statutory limitations on mediation confidentiality apply?
  9. If §1119 applies, is there a specific statutory exception that applies to make the evidence admissible, such as Evid C §§1122, 1123, or 1124?
  10. Is there a constitutional limit on the applicability of §§1115-1128, given the facts of the case?
  11. Is there a constitutional limit on disclosure of the evidence, given the facts of the case?
  12. Are other statutes or privileges applicable that could support an argument for nondisclosure? Are any exceptions to those privileges applicable?
  13. Do the parties have a valid and binding confidentiality agreement requiring confidentiality? If so, are there defenses to the parties’ confidentiality agreement? What would the consequences be for the client if the agreement is upheld or challenged (e.g., attorney fee provision)?

On mediation and other alternative dispute resolution methods, check out CEB’s California Civil Procedure Before Trial, chap 45.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 Responses

  1. […] What Happens in Mediation, Stays in Mediation: 13 Key Confidentiality Questions […]

  2. […] What Happens in Mediation, Stays in Mediation: 13 Key Confidentiality Questions […]

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