Recently, I participated on a panel on Mediation Confidentiality sponsored by the Southern California Mediation Association. As many of you are aware, the California Supreme Court has very strictly interpreted the mediation statutes in California Evidence Code Sections 1115-1128 to the point of repeatedly holding that there are no exceptions to mediation confidentiality; these statutes are to be strictly applied and if any changes are to be made, it is for the legislature and not the courts to make them.

In making and repeating this admonishment, the Court, starting with its very first case on the topic, (Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 25 Cal. 4th 1, 108 Cal. Rptr.2d.642), repeatedly points out:

“We do not agree with the Court of Appeal that there is any need for judicial construction of sections 1119 and 1121 or that a judicially crafted exception to the confidentiality of mediation they mandate is necessary either to carry out the purpose for which they were enacted or to avoid an absurd result. The statutes are clear.…”

“….judicial construction of the statutes is not permitted unless they cannot be applied according to their terms or doing so would lead to absurd results, thereby violating the presumed intent of the Legislature ” (citations omitted.) (Id. at 652-3.)

During my presentation, I focused on this quote in the context of whether there is a “due process” exception to mediation confidentiality as held by a local federal court (and now on appeal). In doing so, I got into a discussion of what IS an “absurd” result? While the Supreme Court repeats this sentence in its subsequent opinions, it never defines “absurd”.

Indeed, in one later case, Simmons v. Ghaderi, (2008) 44 Cal. 4th 570, the court upheld confidentiality even though the defendant did not raise the issue until the eve of trial. The defendant, a doctor, had been sued for wrongful death. At the mediation, she orally agreed to a settlement but then refused to sign the settlement agreement. The ensuing litigation was over whether the oral agreement was enforceable. Both in response to discovery and in her own motion for summary adjudication, the defendant doctor discussed what had occurred during the mediation. It was only on the eve of trial, nearly 15 months after the mediation, that the defendant doctor first raised the issue of mediation confidentiality. Although both the trial court and the appellate court overruled her objection, the Supreme Court upheld it, stating that mediation confidentiality applied.

Is it absurd to allow a party to discuss openly and willingly the events occurring during mediation up until the eve of trial, and then suddenly take a contrary position by invoking it? As the trial court overruled it, and thus let everything in, by virtue of the Supreme Court’s reversal, the defendant doctor got a “do-over” (aka a mulligan). But what about the time and expense of not only the parties, but the court system, the judge and the jury in proceeding through the trial? Is it “absurd” to close the barn door AFTER the horses have escaped?

Does it make a difference if mediation confidentiality is not invoked until AFTER the trial is over? This was somewhat the case in the federal case- Milhouse v. Travelers Commercial Insurance Company, 982 F, Supp.2d. 1088 (C. D. Cal. 2013) on appeal –No. 13-56959 and 13-57029 (Ninth Circuit 2013). Prior to trial, the district court judge ruled (over plaintiffs’ counsel objection) that the mention that mediation had occurred would be admissible at trial. The judge also requested that the parties limit the number of the pre trial motions filed with the court. So, the parties agreed not to file their respective motions to exclude evidence of what had occurred during the mediation, seemingly on a “gentlemen’s agreement” and understanding that neither would introduce such evidence at trial.

At trial, the insurer’s counsel introduced evidence of what had occurred during the mediation. While plaintiffs’ counsel objected on the grounds of lack of foundation and hearsay, he did not object on the grounds of mediation confidentiality. In response to plaintiffs’ motion for a new trial, the trial court ruled that the objection had been waived since it was not raised timely during trial.

Is this the “right” result? Would it have been “absurd” to have held that the objection was well founded and thus grant plaintiff a new trial or a “do-over”? (This was a two week jury trial!)

The Merriam-Webster online dictionary defines “absurd” as “extremely silly, foolish or unreasonable, unsound, or incongruous, having no rational or orderly relationship to human life, or meaningless.” When viewed in this light, does either of the above cases fit this definition?

Or, did the California Supreme Court, by using this term, set the bar extremely high such that there will never be an “absurd” result?

My guess is as good as yours!

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By Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com