Information Disclosed During Mediation
Section 1119 is derived in large part from former section 1152.5. (Rinaker v. Superior Court (1998) 62 Cal. App. 4th 155, 165, hereafter Rinaker; see Cal. Law Revision Com. com., West's Ann. Evid. Code, 1119 (1999 pocket supp.) p. 46).
Former section 1152.5 was designed to protect "information disclosed during mediation to encourage this alternative to a judicial determination of the action.
The same policy that protects offers to compromise (Section 1152) justifies protection to information disclosed in a mediation." (See Cal. Law Rev. Com. com., West's Ann. Evid. Code, former 1152.5 (1995 ed.) p. 527).
The public policy underlying section 1119 is " '. . . to promote mediation as a preferable alternative to judicial proceedings by providing confidentiality." (Rinaker, supra, 62 Cal. App. 4th at pp. 165-166.) " 'Confidentiality is absolutely essential to mediation.
This is not simply to allow parties to keep their dispute out of the public limelight. It is essential for the parties to feel confident that anything they reveal privately to the mediator or in open mediation sessions cannot be used against them should the mediation fail.
Otherwise, parties would be reluctant to make the kinds of concessions and admissions that pave the way to settlement.' " (Ryan v. Garcia (1994) 27 Cal. App. 4th 1006, 1010, quoting Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 1993) 3.25, p. 3-5, original italics.) Under former section 1152.5, the Legislature "manifested its intent to protect a broad range of statements from later use as evidence in litigation. . . ." (Id. at p. 1011).
Section 1121, which prevents the mediator from issuing reports, assessments or findings, was derived from former section 1152.6, which prohibited declarations and findings of any kind by a mediator. (See Cal. Law. Rev. Com. com., West's Ann. Evid. Code, 1121 (1999 pocket supp.) pp. 48-49.) Section 1121 focuses "on preventing coercion.
As Section 1121 recognizes, a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decisionmaker on the merits of the dispute or reasons why mediation failed to resolve it.
Similarly, a mediator should not have authority to resolve or decide the mediated dispute, and should not have any function for the adjudicating tribunal with regard to the dispute, except as a non-decisionmaking neutral." (See Cal. Law Rev. Com. com., West's Ann. Evid Code, 1121 (1999 pocket supp.) p. 48).
As a result, parties and their lawyers who engage in mediation can speak freely, acknowledge weaknesses in their case, admit wrongdoing and offer to make concessions, secure in the knowledge such statements will not be used against them should mediation fail and the matter go to trial.
Nor can the mediator step out of his neutral role and influence the process by making findings, recommendations, or evaluations about the dispute.
While confidentiality is essential to make mediation work, so too is the meaningful, good faith participation of the parties and their lawyers. Without that, there will be few if any confidential statements to protect.
These evidentiary privileges were enacted to promote and encourage mediation. We do not believe the Legislature intended them as an immunity from sanctions, shielding parties to court-ordered mediation who disobey valid orders governing their participation in the mediation process, thereby intentionally thwarting the process to pursue other litigation tactics.
If the mediator or an aggrieved party can not tell the court about another party's sanctionable conduct, it is hard to imagine who else would do so.