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A minor tremor threatened California’s sacred mediation confidentiality laws recently that has the mediation community running for shelter. The case, Rojas v. Los Angeles County Superior Court (October 9, 2002), was brought by a group of tenants against a property owner for construction defects that allegedly caused health problems as a result of toxic mold. The importance of the case arose out of a formal discovery request by the tenants to inspect an investigation binder prepared by the property owner which contained photographs and other raw test data concerning the mold issue. While on it’s surface the request seemed quite reasonable, the binder itself was actually prepared and used in connection with a mediation held in prior litigation to which the tenants were not parties.
As expected, the defense objected to the request for the binder under the protection afforded through the well established mediation privilege embodied in Evidence Code section 1119. The court of appeal ordered the binder to be turned over to the tenants notwithstanding the argument that the documentary evidence was developed solely for the purpose mediation. The court reasoned that the confidentiality statutes in California protect the substance of a mediation, such as negotiation and discussions, but do not protect pure evidence, such as material objects offered to prove facts like photographs and raw data contained in the binder. The court reasoned that since the tenants had no other way of getting the information to prove their case, on balance, it was more important to disclose the information than to allow gamesmanship to exist in our search for justice.
The excuse that the tenants had no other way of getting the information was just that–an excuse to rewrite the confidentiality statutes and come up with a new standard for determining what can be disclosed. It would appear that the court was persuaded that the tenants were in a bind, and that the search for the truth required them to create an exception to the statute where non existed. Unfortunately, the court might have been persuaded by aggressive litigators who pulled the wool over their eyes. Indeed the court completely failed to consider what other remedies were available to the tenants, and the fact that the tenants essentially sat on their rights until several months after the initial litigation was settled. If the problem had been so intolerable to the tenants for so long, one would think that they would have taken legal action months if not years before they commenced their action. By sitting on their rights, they might have made a calculated litigation decision to “wait and see” if the property owner was able to prove that mold existed on the premises. If so, the tenants simply had to ride their coattails. When they learned that the coattails were cloaked in the confidentiality statutes, they attacked the statutes instead of the problem. As they say, bad facts make bad law. And, weak judges make worse law.
What effect does this have on the litigated case that go to mediation? To begin with, the free exchange of information which is at the core of mediation has been undermined. Parties will now fear that information presented at mediation can and will be used in later litigation, resulting in an obvious reduction in the amount of information that is ultimately disclosed during a mediation session. This reduction translates into less talk and more posturing between the parties.
Individual trial judges will now have the power to conduct balancing tests to determine what information can be discoverable in the same way they determine what information is protected by the attorney work product privilege. Exposing the process of mediation into the privilege laws opens up pandora’s box to abuse by sympathetic trial judges. The rules of the road have been lost in the development of privilege exceptions where no privilege ever existed.
Finally, in it’s angst to serve up so-called justice for a group of tenants who appeared to strategically maneuver the litigation with no concern for the solemnity of the confidentiality laws, this court has failed to account for the long term policy implications that will result from such a decision. Parties can no longer attend mediation in California with an expectation that they will share important information with the mediator or their adversary for fear that it will come back to bite them in the future. This result moves the process back about 20 years.
Time will tell how litigators deal with this mess. In the meantime, mediators from around the state are warning parties that they must enter into side agreements about how evidence will be handled in mediation, or risk unexpected consequences in the future.
“An' though the rules of the road have been lodged
It's only people's games that you got to dodge
It's alright, Ma, I can make it.”
Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for eighteen years. Krivis is on the board of visitors of Pepperdine Law School and serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. Contact him at his website, www.firstmediation.com.
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