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Scott's Mediation Tips > Cannot Waive Confidentiality
Mediation Confidentiality Cannot Be Impliedly Waived

 

In Simmons v. Ghaderi (2008) 44 Cal.4th 570 the California Supreme Court reaffirmed its views by ruling that mediation confidentiality cannot be the subject of an implied waiver.


The opinion in Simmons arose out of the mediation of a medical malpractice claim. At the beginning of the mediation, the defendant doctor gave her carrier written authority to settle on her behalf. However, when a settlement was apparently reached, the doctor declared that she was revoking her consent and walked out. The plaintiff then amended her complaint to state a cause of action for breach of an oral agreement to settle. During the course of discovery and in support of a motion for summary adjudication of the breach of oral contract claim, the defendant doctor did not dispute the events of the mediation and, in fact, discussed them openly. However, when the trial court denied her summary adjudication motion and the case proceeded to trial, the defendant objected to the introduction of anything which had occurred at the mediation based upon the mediation confidentiality statutes. The trial court overruled the objections, considered what had happened during the mediation and entered judgment in favor of the plaintiff.

In a two-to-one decision, the Court of Appeal affirmed the trial court judgment and held that, because the defendant had presented evidence of what occurred at the mediation in pretrial proceedings, she was estopped from asserting mediation confidentiality. In his dissent, Justice Aldrich stated that the majority's use of estoppel was "a veiled attempt at relabeling waiver as estoppel."

In a unanimous decision, the Supreme Court reversed the Court of Appeal, holding that the Court of Appeal had improperly relied upon the doctrine of estoppel to create a judicial exception to the mediation confidentiality statutes within Evidence Code Sections 1115, et seq. The Court also agreed with Justice Aldrich's statement that what the Court of Appeal was attempting to determine was whether a party can impliedly waive mediation confidentially through litigation conduct. The Court held that such a waiver cannot be implied; it can only be expressed through a written agreement of all parties to the mediation. In reaching this conclusion, the Court stated that -- in adopting the mediation confidentiality statutes -- the Legislature "chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process."

So, once again, the confidentiality of the mediation process has been determined to be of paramount importance - even to the point of protecting litigants who may misuse that process.

 




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