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According to the California Court of Appeal, the California Code of Evidence requires that communication made "for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation" be held confidential, and does not permit courts to craft exceptions that would allow a court to avoid a harsh and inequitable result.
In Wimsatt v. Superior Court, No. B196903, 2007 WL 1739704 (Cal. Ct. App. June 18, 2007), law firm Magaña and attorney Wimsatt appealed a trial court's denial of their application for a protective order, and instead sought an order to protect certain briefs, e-mails, and oral communications related to an alleged unauthorized settlement agreement by Wimsatt as "mediation-related," and confidential under the California Code of Evidence. The trial court held that these particular communications were not protected because "the [L]egislature did not intend confidentiality of mediation proceedings to be so complete as to shield perjury or inconsistent statements."
The Court of Appeal ruled that the trial court had erred in holding that there was a "perjury" exception to the protection of mediation-related communications, and observed that the California Supreme Court had "refused to judicially create exceptions to the statutory scheme, even in situations where justice seems to call for a different result."
The Court reiterated Court of Appeal precedent holding that "[t]he conflict between the policy of preserving confidentiality of mediation in order to encourage resolution of disputes and the interest of the state in enforcing professional responsibility to… protect the public against incompetent and/or unscrupulous attorneys has not gone unrecognized…. [H]owever, any resolution of competing policies is a matter for legislative, not judicial, action."
Accordingly, the Court found the briefs and e-mails protected as mediation-related communication, falling within the Code's definition of communication made "for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation…." The Court described mediation briefs as "epitomiz[ing] the types of writings which the mediation confidentiality statutes have been designed to protect from disclosure," and determined the e-mails were "to clarify statements in the mediation briefs" and "were materially related to the mediation…."
However, the Court denied protection to the oral communication, finding that "Magaña had not brought forth any evidence to demonstrate that the conversation is linked to… mediation or that it is anything other than expected posturing that occurs in most civil litigation." Unlike the briefs and e-mails, the Court found no evidence of the conversation's relationship to the mediation except proximity in time, and declared that such conversations "are not protected by mediation confidentiality simply because the conversations might have occurred temporally before a scheduled mediation."
While the Court followed precedent and showed deference to the legislature on the scope of mediation-related confidentiality, the Court did argue that "[g]iven the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California's broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered." The Court also cautioned, "[i]n light of the harsh and inequitable results of the mediation confidentiality statutes… the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute."
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