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In a closely watched case, the California Supreme Court ruled last week that photographs, witness statements and other evidence used during mediation proceedings should be kept confidential. The unanimous decision overturns a 2d District Court of Appeal ruling contested by many mediators. The issue had divided the mediation community�some argued that such evidence should be released to prevent abuse of the process while others said changing the rules would keep parties away. Justice Ming Chin sided with the latter, hinting that changing mediation rules could clog the legal system. Many people choose to mediate, thinking the proceedings will remain confidential, Chin wrote. “One of the fundamental ways the Legislature has sought to encourage mediation is by enacting several ‘mediation confidentiality provisions,’ ” Chin wrote. “As we have explained, confidentiality is essential to effective mediation because it promotes a candid and informal exchange regarding events in the past . . . .The frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and adjudicatory processes.” Typically, mediators support confidentiality in their proceedings. However, some mediators believe that confidentiality rules could be used to hide unfavorable evidence. In its ruling, the 2d District had decided that tenants suing an apartment owner and builder for mold infestation could use photographs that showed the building’s moldy walls. Attorneys for apartment owner Julie Coffin argued that the photos should not be admitted because they were initially presented during construction defects mediation that had been settled. “I think the decision is a very sound one and preserves the confidence that attorneys have in mediation,” said Robert Risbrough of Santa Ana, Calif.’s Watten, Discoe, Bassett & McMains, which represented Coffin. “That confidence is why mediation has burgeoned throughout the state in the last 15 years. If it had gone the other way, you would have seen a lot of litigants hold their cards close to their chest, and that would ultimately hurt mediation . . . if not ruin it.” Risbrough said every state has a confidentiality provision for mediation and the decision “helps preserve the process” in California. Mediation is used to resolve such disparate issues as workplace disputes, product liability cases and divorces. Opposing attorney Bruce Brusavich of Torrance, Calif.’s Agnew & Brusavich said the decision would have a “chilling” effect. “I would be reluctant to go into mediation if I thought my opponents would use it to hide evidence,” Brusavich said. He added that the decision would make it especially hard for appellants in products liability or exposure cases litigating against well-heeled companies and powerful lawyers. The case is Rojas v. Superior Court, 04 C.D.O.S. 6189.

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