Exceptions to Mediation Confidentiality (California)

In Foxgate Homeowners Assn., Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, the Supreme Court held that the Court of Appeal erred in creating a judicial exception to the confidentiality requirement of Evidence Code section 1119 when a mediator reported that one of the parties was participating in bad faith. (Foxgate, supra, 26 Cal.4th at pp. 3-4.) The Supreme Court found that a judicially created exception was not needed to carry out the clear and unambiguous language of section 1119, even if creating an exception would protect against attorney misconduct. (Id. at p. 17.) The Court observed that a judicially created exception is permitted only when statutes "cannot be applied according to their terms or when doing so would lead to absurd results, thereby violating the presumed intent of the Legislature." (Id. at p. 14.) A judicially crafted exception to the mediation confidentiality statutes to permit disclosure of mediation misconduct is unnecessary to effect legislative intent or avoid an absurd result. (Ibid.) The legislative intent behind section 1119 is to promote alternative dispute resolution by preserving confidentiality in mediation proceedings. (Ibid.) The Legislature weighed all of the competing interests and chose the policy that promotes effective mediation over a policy that might encourage good faith participation in the process. (Id. at p. 17.) Therefore, in order to encourage mediation, section 1119 "unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception." (Id. at p. 15.) The California Supreme Court reaffirmed the principle that the section 1119 bar to the disclosure of mediation communications is unqualified, explicitly rejecting the argument that a judicially fashioned exception to the confidentiality of mediation is needed. (Rojas v. Superior Court, supra, 33 Cal.4th at pp. 423-424.) In Rojas v. Superior Court (2004) 33 Cal.4th 407, the Court of Appeal fashioned an exception to section 1119 to allow a party discovery of communications that would otherwise be confidential under the mediation privilege upon a showing of good cause or prejudice. (Ibid.) The Supreme Court reversed, reasoning that the Legislature would have enacted a good cause exception when it passed section 1119 if it had so desired. (Ibid.) The Legislature has not enacted an exception to section 1119 for discovery and disclosure of mediation communications between an attorney and his or her client for use in an ensuing malpractice action, and this Court may not create one. (Foxgate, supra, 26 Cal.4th at p. 17.)