1. Section 1119 of the California Evidence Code specifies that writings produced during a mediation session, including rejected settlement offers and counteroffers, are covered by California’s confidentiality provisions.
2. State protections of the confidentiality of mediation communications end when the parties either reach a settlement or agree that the mediation is no longer viable.
3. In <i>Rojas v. Superior Court</i> the California Supreme Court embraced importing a “good cause” exception to the mediation-confidentiality statutes from the work product doctrine.
4. Since its 1998 revision, the Evidence Code now contains all statutory procedures and urgings to embrace mediation as an alternative dispute resolution mechanism.
5. The Uniform Mediation Act underscores the importance of confidentiality in fostering effective communication during the mediation process.
6. A verdict may be vacated if a court or other adjudicative body later learns that confidentiality protections were breached in obtaining it.
7. In revamping California’s statutory provisions on mediation, legislators copied many of the provisions found in the Uniform Mediation Act.
8. Mediators may be compelled to testify about their knowledge of criminal conduct gained during a mediation session.
9. Though evidence gathered during a mediation may not be compelled in a subsequent administrative action, it may be introduced at any later arbitration of the matter.
10. A person who seeks to compel a mediator to divulge confidential mediation information may be forced to pay the mediator’s attorneys fees.
11. In considering whether the open court testimony of a mediator should be allowed, the federal court in <i>Olam v. Congress Mortgage Company</i> based its decision on the fact that the parties to the mediation waived confidentiality protections.
12. Evidence that would otherwise be admissible outside of a mediation may be disclosed even though it was introduced during a mediation consultation.
13. In California, parties may not waive mediation confidentiality.
14. Though mediators may not testify about the conduct or content observed during a session, they may testify freely about their personal assessments of the veracity of the parties involved.
15. A settlement agreement reached through mediation may be disclosed if all parties affected by it agree orally to the disclosure.
16. In <i>Foxgate Homeowners’ Association v. Bramalea California, Inc.</i> the California Supreme Court crafted an exception to mediationconfidentiality provisions to avoid what it deemed to be “an absurd result.”
17. In <i>Foxgate</i> the California Supreme Court adopted a strictconstructionist view of the Evidence Code’s mediation-confidentiality statutes—and expressly rejected the exceptions set out by earlier court holdings.
18. Some court of appeal cases following <i>Foxgate>/i> and <i>Rojas</i> have taken a strict-constructionist view.
19. In <i>Rinaker v. Superior Court</i> the court based its opinion on the fact that the subsequent juvenile proceeding was outside the purview of the confidentiality provisions.
20. The statutory exceptions to mediation confidentiality are generally aimed at protecting against its misuse or abuse.