Mediation Statutes and Cases

On this page, you can view and download California statutes governing mediation, as well as Appellate Court decisions on mediation confidentiality.

Selected Cases On Mediation Confidentiality

Facebook, Inc. v. Pacific Northwest Software (2011) 640 F.3d1034
In action to enforce a settlement reached at mediation, the parties’ mediation confidentiality agreement precluded evidence of allegedly fraudulent statements made during the mediation regarding the value of Facebook shares.

Casell v. Superior Court (2011) 51 Cal.4th 113
Attorney’s mediation-related discussions with client were confidential, and therefore, neither discoverable nor admissible for purposes of proving client’s legal malpractice claim.

Simmons v. Ghaderi (2008) 44 Cal.4th 570
The Legislature intended the mediation confidentiality statutes to be applied broadly, and exceptions are limited to narrowly proscribed statutory exemptions. Mediation confidentiality must be strictly enforced, even where competing policy considerations are present.

Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137
When clients participate in a mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice.

Fair v. Bakhtiari (2006) 40 Cal.App.4th 189
A memorandum of settlement terms negotiated at mediation which did not include a statement that it was binding or enforceable was inadmissible.

Stewart v. Preston Pipeline, Inc. (2005) 134 Cal.App.4th 1565
In proceedings to enforce a settlement, an agreement signed at the conclusion of a mediation satisfied the statutory requirements for waiver of mediation confidentiality. The Court held that the agreement, which was signed by plaintiff, plaintiff’s attorney, and defendants’ attorney, was a valid contract that was enforceable even absent the defendants’ signatures.

Travelers Casualty & Surety Co. v. Superior Court (2005) 126 Cal.App.4th 1131
Settlement judge in clergy sexual abuse cases exceeded his authority and abandoned his role as neutral faciliator, making factual findings which effectively rendered the mediation process coercive.

Rojas v. Superior Court (2004) 33 Cal.4th 407
Statutory privilege for any writing prepared during the mediation process applied to witnesses’ statements, analyses of raw test data, and photographs prepared during mediation of a construction dispute between owners and builders of apartment complex, and thus, such materials were not discoverable in tenants’ subsequent litigation against those parties.

Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351
Unlike statutory or common law privileges, mediation confidentiality is not subject to implied waiver.

Foxgate Homeowner’s Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1
To encourage mediation confidentiality, Evidence Code sections 1119 and 1121 unqualifiedly bar disclosure of communications made during mediation absent an express statutory exception.

Rinaker v. Superior Court (1998) 62 Cal.App.4th 155
In juvenile delinquency proceedings, the statutory ban on disclosure of mediation communications must yield to the constitutional rights to confront and cross-examine prosecution witnesses. The juvenile court was directed to conduct an in camera examination of a mediator’s potential testimony, and to determine whether that testimony was necessary to vindicate the constitutional rights at issue.