Like everything else in mediation life, confidentiality, theory and practice sometimes diverge. Although U.S. legislators and courts have made it clear that mediation confidentiality must be respected and enforced, this rule of confidentiality and/or admissibility may be ignored or even not addressed in any situation. This may also be the case if the parties have signed a mediation secrecy agreement. Again, the parties and the court can ignore them. In order to waive the confidentiality of the mediation, all parties – both the participants and the mediator – must do so orally or in writing. (Evid.Code, §§ 1122 and 1124.) And for a settlement agreement to be admitted as evidence, it must contain the “magic words” that it is “permissible or subject to disclosure” or “enforceable or binding” or “words to that effect.” (Evid. Code, § 1123.) In Fair v. Bakhtiari (2006) 40 Cal.4th 189, the Court again held that the confidentiality of mediation precludes the admission of a letter of intent in an application for the execution of the Settlement Memorandum because it did not contain the “magic words” to be binding, enforceable, permissible or words to that effect, as required by Section 1123 of the Code of Evidence. The Ninth District upholds the exclusion of evidence on appeal. However, this is done on the basis of a confidentiality agreement between the parties – and not on the basis of the local rule of the district court, which prescribes the confidentiality of the mediation. In recent years, we have seen a number of district court decisions where courts have shown that they have accepted confidentiality protections for communications during mediation under California Evidence Code § 1119, but have shown a tendency to analyze privacy issues more accurately than their counterparts in state courts. For example, in Haskins v.

Employers Ins. von Wausau, 2015 WL 369983 (N.D. Cal., January 28, 2015), the court ruled that the plaintiff`s mediation mandate was subject to discovery because it had been established by or on behalf of fewer of all the defendants in the mediation and the plaintiffs (through their lawyer) had expressly agreed in writing to make its disclosure by writing to the plaintiffs` lawyer, to meet the express waiver requirements of the Code of Evidence §1122(a)(2). For another example, in Doublevision Entertainment, LLC v. Ins Specialty Navigators. Co., No. C14-02848, 2015 WL 370111 (N.D. Cal., January 28, 2015), the court found that California`s protection of mediation secrecy was a ground for issuing a protection order for some, but not all, communications during, before, and after mediation in a related state court case: that is, only two out of five emails before mediation were protected because the other emails did not discuss a mediation strategy. and did not focus on the next ones.

Mediation has been prepared. To be eligible for protection, the words “prepared for use in mediation” must be provided or the content must relate to the mediation strategy. The post-mediation memorandum was considered protected because it reproduced statements from the mediation. “The end of mediation did not eliminate the privilege associated with statements and communications during mediation.” The emails were considered unprotected after the mediation because they were exchanged long after the expiry of the 10-day period prescribed by the Code of Evidence § 1125 (a) (5), did not relate anything about the previous mediation and could not be prepared for this purpose or as part of the mediation, since no further mediation was planned. planned or under discussion. Three years later, in Rojas v. Superior Court (2004) 33 Cal.4th 407, the Court again refused to allow the plaintiffs to obtain evidence upon discovery that “. for this purpose, within the framework of or in accordance with mediation. even if the applicants had no other means of obtaining the decisive evidence. Here, too, the court refused to create a judicial exception for “just cause” to the confidentiality of the mediation, noting that no “absurd outcome” could be avoided here. .

It was only fitting that Travelers presented the parties` mediation statements to the jury. The evidence presented at trial clearly showed that Travelers did not settle the Milhouses` claim because of the positions taken during and after mediation by the Milhouses and their lawyer. .