LOS ANGELES – The Southern California Mediation Association (“SCMA”) announced (May 22, 2003) its historic, first-ever filing of an Amicus Curiae brief, in support of the petitioners in Rojas v. Superior Court, 102 Cal.App.4th 1062 (2002). Rojas held that the mediation confidentiality statute, California Evidence Code . 1119, does not apply to raw data or “non-derivative” evidence disclosed in a mediation, and provides only a qualified protection for “amalgamated materials” such as charts and diagrams prepared by an attorney and disclosed in a mediation.
In Rojas, tenants requested that a developer produce photographs and related materials in discovery. The developer had previously used the photos in a related case, which was subsequently settled. In Rojas, the developer then claimed that the settlement negotiations in the earlier case amounted to a “mediation” and that the materials were “prepared for mediation” within the meaning of the Evidence Code. The Court of Appeal ruled that the developer should produce the photos notwithstanding the “mediation confidentiality” arguments he asserted. SCMA supports this position.
“We realize that this position may seem counter-intuitive to some,” stated SCMA President, Esther Carson Bleuel. “We also acknowledge that this may not be the conventional wisdom. However, as a board, we deliberated long and hard before voting overwhelmingly in favor of taking this position.
In the final analysis, we are absolutely not against mediation confidentiality; far from it – rather, we are in favor of mediation integrity.” The SCMA brief, written by Wendy Lascher of Ventura and SCMA Board Member Jeff Kichaven of Los Angeles, supports the majority opinion of Justice Lillie of the Court of Appeal that permitted discovery of the photographs and other documents that were the subject of this dispute. The brief makes it clear that the California Evidence Code provides a valuable mechanism to keep confidential documents and evidence that are “prepared for mediation,” when those materials are so designated in advance. Rojas merely prohibits parties from exploiting the confidentiality statute or obstructing the administration of justice. In particular, the SCMA brief makes the following points:
I. Affording absolute confidentiality to all evidence belatedly claimed to have been “prepared for mediation” would destroy the integrity of mediation and the integrity of litigation as well.
A. A rule of absolute confidentiality conflicts with the legislative goal of encouraging mediation.
B. The Foxgate decision does not require that evidence prepared for mediation automatically be afforded absolute confidentiality.
C. In this instance, Evidence Code Section 1119 does not apply because the settlement proceeding in the earlier related case was in fact, not a mediation.
II. A party who intends to claim mediation confidentiality must identify evidence as prepared solely for mediation at the time the evidence is disclosed at the mediation. “SCMA has a responsibility to provide leadership and support to the mediation community,” stated SCMA Board Member, Jeff Kichaven. “The SCMA board feels it is vital to protect the integrity of mediation and to encourage public confidence in its use. The primary goal and value of mediation is to foster informed self-determination in the resolution of conflict. In the context of litigated cases, mediation helps courts manage crowded dockets, serves the interests of clients in achieving settlements when reasonably possible, and assists the public in the administration of justice. Mediation can serve these goals only if its integrity is preserved, and that requires the Supreme Court to affirm the Court of Appeals’ decision in Rojas. We didn’t think anyone else in the mediation community was going to step forward and say so – that’s why the SCMA Board was so courageous in voting as it did.”
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