Special Confidentiality Provisions In The Evidence Code For Mediations Expressly Do Not Apply To MSCs
California practitioners are aware that the court, on its own motion, or at the request of any party, may set a Mandatory Settlement Conference requiring the personal attendance of trial counsel, parties, and persons with full authority to settle. Rule 3.1380, California Rules of Court. MSCs are not voluntary settlement conferences. But does the formal “mediation privilege” under Evidence Code section 1119 apply? No.
Rule 3.1380 states that a court must not “[a]point a person to conduct a mediation under this rule.”
The Advisory Committee Note for California Rule of Court 3.1380 explains that the mediation privilege expressly does not apply:
[Rule 3.1380] Subdivision (d) This provision is not intended to discourage settlement conferences or mediations. However, problems have arisen in several cases, such as Jeld-Wen v. Superior Court of San Diego County (2007) 146 Cal.App.4th 536, when distinctions between different ADR processes have been blurred. To prevent confusion about the confidentiality of the proceedings, it is important to clearly distinguish between settlement conferences held under this rule and mediations. The special confidentiality requirements for mediations established by Evidence Code sections 1115-1128 expressly do not apply to settlement conferences under this rule. This provision is not intended to prohibit a court from appointing a person who has previously served as a mediator in a case to conduct a settlement conference in that case following the conclusion of the mediation.
Comment: Even though the formal mediation privilege does not apply, it may be better for all concerned to act as if it did apply (while remembering that it does not apply!).