Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality be a Function of the Court in Which the Litigation is Pending?

Pepperdine Dispute Resolution Law Journal Volume 12 | Issue 1 Article 2 2-8-2013 Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality be a Function of the Court in Which the Litigation is Pending? Rebecca Callahan Follow this and additional works at: https://digitalcommons.pepperdine.edu/drlj Part of the Civil Procedure Commons, Courts Commons, Dispute Resolution and Arbitration Commons, and the Evidence Commons Recommended Citation Rebecca Callahan, Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality be a Function of the Court in Which the Litigation is Pending?, 12 Pepp. Disp. Resol. L.J. Iss. 1 (2013) Available at: https://digitalcommons.pepperdine.edu/drlj/vol12/iss1/2 This Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contact , . Callahan: Mediation Confidentiality: For California Litigants, Why Should M [Vol. 12: 63, 2012] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality be a Function of the Court in Which the Litigation is Pending? Rebecca Callahan* I. OVERVIEW In opening a mediation session, it is fairly routine for the mediator to promise comprehensive confidentiality to the participants. 1 While there are a number of statutes, rules, and cases that support confidentiality in mediation,2 a certain amount of skepticism and concern exists regarding the scope of protection that actually exists.3 The uncertainty about the nature * Rebecca Callahan is an independent mediator and arbitrator in Newport Beach, California. Ms. Callahan received her J.D. from the University of California, Berkeley (Boalt Hall) and her B.A. from the University of Southern California. In 2007, she received an LL.M. in Dispute Resolution from Pepperdine University School of Law, Straus Institute for Dispute Resolution. Ms. Callahan is on the mediation and commercial arbitration panels of the American Arbitration Association and is an adjunct professor at Pepperdine University School of Law where she teaches Mediation Theory and Practice. Ms. Callahan frequently speaks and writes on various dispute resolution topics. Her most recent publications include What to Do when Insolvency Becomes an Issue in Mediation, 14 CONFLICT MGMT. (ABA SEC. LITIG.), Issue 2, Winter/Spring 2010 (Part 1) and 14 C ONFLICT MGMT. (ABA SEC. LITIG.), Issue 3, Summer/Fall 2010 (Part 2); Truth or Dare: California’s New Ethics Standards for Private Arbitrators, 18 BUS. L. NEWS, Issue 1, 2008; and California’s New Ethics Standards: A Hot Bed of Controversy and Conflicting Decisions, 5 J. AM. ARB. 295 (2006). Ms. Callahan is a past president of The Peter M. Elliott American Inn of Court and is the current Chair-elect of the Alternative Dispute Resolution Section of the Orange County Bar Association. 1. Indeed, in the context of an attorney–mediator’s ethical obligations, some courts have charged attorney–mediators with the obligation to receive and preserve confidences in much the same manner as the attorney–client privilege. See Poly Software Int’l, Inc. v. Su, 880 F. Supp. 1487 (D. Utah 1995) (law firm disqualified when one of the firm’s attorneys had served as a mediator in the litigated matter); McKenzie Constr. v. St. Croix Storage Corp., 961 F. Supp. 857 (D.V.I. 1997). 2. See infra Part III. 3. See infra notes 5-6 and accompanying text. 63 Published by Pepperdine Digital Commons, 2013 1 Pepperdine Dispute Resolution Law Journal, Vol. 12, Iss. 1 [2013], Art. 2 and extent of what confidentiality protections exist for things said in mediation is especially apparent in federal court litigation disputes. 4 As discussed below, the scope of protection available under California law is quite broad as compared to that available under federal law which is unclear and minimal at best. Scholars have recognized that “as a legal matter, there is still considerable uncertainty about the extent to which communications made during the process of mediating a dispute are protected from disclosure in subsequent legal proceedings.” 5 One authority has opined that “[c]urrently, it is not an overstatement to say that no mediator or counsel in the country can, with confidence, predict the extent to which it will be possible to maintain the confidentiality of a mediation.”6 As discussed below, both state and federal courts recognize that a theoretical component of mediation is confidentiality. While California has express statutory provisions that provide for confidentiality protections, and numerous Supreme Court of California decisions endorse those protections, no similar protections are available under federal law.7 Therefore, the confidentiality protections afforded California litigants with respect to communications had in mediation may depend on whether litigation is pending or ultimately filed in state or federal court. Because mediation is a nonjudicial alternative to litigation in the courts, the question posed by this article is: Why should mediation confidentiality depend upon (a) whether the dispute has escalated to the point of litigation, and (b) whether that litigation is pending in state or federal court?8 II. CONFIDENTIALITY AS AN INTEGRAL PART OF MEDIATION The inclusion of confidentiality as a defining feature of mediation comes from its theoretical underpinnings. “The salient features of mediation 4. See infra Part IV; see also D WIGHT GOLANN, MEDIATING LEGAL D ISPUTES 218-220 (2009); Dennis Sharp, The Many Faces of Mediation Confidentiality, in HANDBOOK ON MEDIATION 223-236 (2d ed. 2010). 5. See Kenneth R. Feinberg, Mediation—A Preferred Method of Dispute Resolution, 16 PEPP. L. REV. S5, 28 (1989); Note, Protecting Confidentiality in Mediation, 98 HARV. L. REV. 441, 44647 (1984); see also Lawrence R. Freedman & Michael L. Pigroff, Confidentiality in Mediation: The Need for Protection, 2 OHIO ST. J. ON D ISP. RESOL. 37 (1986). 6. Ellen E. Deason, Predictable Mediation Confidentiality in the U.S. Federal System, 17 OHIO ST. J. D ISP. RESOL. 239, 241 (2002). 7. See infra Part IV. 8. See discussion infra Part III (California statutory law makes communications in mediation inadmissible as evidence in any legal proceeding); Part IV (no similar counterpart exists under federal law). Therefore, a California litigant bears the risk that statements made or writings prepared during mediation of a state court dispute may become admissible as evidence in a subsequent or related federal court action. 64 https://digitalcommons.pepperdine.edu/drlj/vol12/iss1/2 2 Callahan: Mediation Confidentiality: For California Litigants, Why Should M [Vol. 12: 63, 2012] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL are an informal process, a neutral medi (...truncated)