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Confidentiality is a sacred tenet of the mediation process. That’s why a case before the California Supreme Court that challenges the off-the-record nature of mediation proceedings is being closely watched within dispute resolution circles. But in an unusual turn of events, it’s the mediators — at least some of them — who are calling for limits on confidentiality protections. In an amicus curiae brief filed with the court last week, the Southern California Mediation Association, a 500-member industry group, argues that certain types of evidence used in mediations should not automatically be shielded from subsequent use in litigation. It’s a big departure from the notion of absolute confidentiality espoused by many mediators and underscores the division within their ranks as the state’s high court prepares to hear a case that could significantly alter the shape of mediations. “Mediation is supposed to be a safe environment where people can come and say what they want without fear of it being used against them. You take that away and people are going to be reluctant” to participate in mediation, said Michael Carbone, the former president of San Francisco’s Mediation Society, who stressed that he was offering his personal opinion, not that of the Mediation Society. According to the SCMA’s amicus brief in Rojas v. Superior Court, S111585, only evidence specifically prepared for a mediation should be afforded absolute confidentiality protections. And once a party declares the evidence to be prepared for mediation, the party waives the right to use it in future litigation. “We at the SCMA believe that a more subtle and nuanced view of the confidentiality statutes is appropriate,” said Jeff Kichaven, an SCMA board member who co-authored the amicus brief. The SCMA contends that it is not trying to weaken the confidentiality privilege of mediations, but simply trying to strengthen the integrity of the system. If all evidence presented in a mediation were automatically protected from future use, the SCMA argues, mediation could become “a tool for burying unfavorable evidence.” The brief urges the California Supreme Court to affirm the 2nd District Court of Appeal’s Rojas opinion. In Rojas, the 2nd District ruled that a group of tenants suing their apartment owner and the builder for a mold infestation could not be prevented from using photographs depicting the building’s moldy walls. The apartment owner maintained that the photos were off-limits since they were part of a prior construction defects mediation with the developers that had since settled. But the court drew a distinction between raw, factual data pertaining to the case and evidence that is compiled and prepared for the mediation. State evidence codes involving the mediation privilege “are meant to protect the substance of mediation, i.e., the negotiations, communications, admissions and discussions designed to reach a resolution of the dispute at hand. These statutes do not protect pure evidence,” reads the 2-1 opinion authored by now-deceased Justice Mildred Lillie. Many mediators think the distinction goes too far, however. “It really, in my view, attempts to rewrite the evidence code and takes what should be an absolute privilege and tries to make it a qualified privilege,” said Carbone. Richard Davidoff, the past president of the Los Angeles County Bar Association’s Dispute Resolution Services, said if the decision is not reversed, fewer cases will be resolved in mediation. “No one would ever let his or her hair down in a mediation,” said Davidoff. Mediators note that the California Supreme Court has in the past upheld the supremacy of mediation’s confidentiality privilege. In the California Supreme Court’s 2001 decision in Foxgate Homeowners’ Association v. Bramalea California, 26 Cal.4th 1, the court ruled that the confidentiality of communications within a mediation trump concerns about whether a party in the mediation acted in good faith. According to Davidoff, the California Supreme Court’s decision in Foxgate was broadly supported within the mediation industry. And as the SCMA’s amicus brief demonstrates, the Rojas case has proved more divisive. Ironically, this lack of consensus might not necessarily result in the Rojas case garnering a slew of amicus briefs during its stay on the California Supreme Court docket. “The differing views on this case may prevent some organizations from reaching a sufficient consensus to warrant filing an amicus brief,” said Davidoff.

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