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In a closely watched case, the California Supreme Court on Monday ruled that photographs, witness statements and other evidence used during mediation proceedings should be kept confidential. The unanimous decision overturns a 2nd 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 2nd 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’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 says 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’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, adding that the decision would make it especially hard for appellants in product liability or exposure cases litigating against well-heeled companies and powerful lawyers. “If [the companies] can say, ‘I did this for mediation only,’ they can make it disappear,” he said. “They can take perfectly admissible evidence, claim it was for mediation … and then it’s gone.” Brusavich said the California Legislature should amend laws to clarify when evidence in mediation is privileged. However, attorneys with the Southern California Mediation Association said the Supreme Court left several issues unresolved — in particular, what constitutes a mediation hearing. The SCMA filed an amicus curiae brief in the case. Though the SCMA didn’t win a single vote, association attorney Jeff Kichaven said he was glad the court left some issues for another day. “We raised significant issues, and the court decided not to adjudicate,” Kichaven said. Asked if the ruling would have a negative effect on mediation, Kichaven said, “Time will tell.” “If mediation is used to frustrate rather than serve justice, people will use mediation less,” he said. The case is Rojas v. Superior Court, 04 C.D.O.S. 6189.

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