Mediation’s Confidentiality Controversy
September 2006
California's broad assurances of confidentiality, while heralded as necessary for the integrity of mediation, also have some side effects that may undermine the process.
General Credit
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. True False
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. True False
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. True False
4. Since its 1998 revision, the Evidence Code now contains all statutory procedures and urgings to embrace mediation as an alternative dispute resolution mechanism. True False
5. The Uniform Mediation Act underscores the importance of confidentiality in fostering effective communication during the mediation process. True False
6. A verdict may be vacated if a court or other adjudicative body later learns that confidentiality protections were breached in obtaining it. True False
7. In revamping California’s statutory provisions on mediation, legislators copied many of the provisions found in the Uniform Mediation Act. True False
8. Mediators may be compelled to testify about their knowledge of criminal conduct gained during a mediation session. True False
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. True False
10. A person who seeks to compel a mediator to divulge confidential mediation information may be forced to pay the mediator’s attorneys fees. True False
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. True False
12. Evidence that would otherwise be admissible outside of a mediation may be disclosed even though it was introduced during a mediation consultation. True False
13. In California, parties may not waive mediation confidentiality. True False
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. True False
15. A settlement agreement reached through mediation may be disclosed if all parties affected by it agree orally to the disclosure. True False
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.” True False
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. True False
18. Some court of appeal cases following <i>Foxgate>/i> and <i>Rojas</i> have taken a strict-constructionist view. True False
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. True False
20. The statutory exceptions to mediation confidentiality are generally aimed at protecting against its misuse or abuse. True False
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