Confidentiality Provisions Are “Clear And Absolute.”
Yet again, the Court of Appeal reminds us, “[w]e have repeatedly said that these [mediation] confidentiality provisions are clear and absolute.” Syers Properties III, Inc. v. Rankin, et al., Case No. A136018 (1st Dist. Div. 2 May 5, 2014) (Kline, Haerle, Brick) (unpublished). In fact, I am convinced that is one reason why we don’t have even more reported appellate decisions concerning the mediation privilege: because the Courts of Appeal have generally drawn a “bright line” by saying that mediation confidentiality in Evid. Code section 1119 is “clear and absolute.”
The Court of Appeal didn’t even have to address the issue here, because it concluded on other grounds that plaintiff/appellant landlord, in a malpractice suit against its attorney, had developed no viable theory of damages, thus justifying a nonsuit by the trial court. But that didn’t deter the Court of Appeal from saying one more time that mediation confidentiality is “clear and absolute.” Well, not entirely, because as the Court acknowledged, there are “rare circumstances” that will justify an exception.
Here, however, there was no exception. Plaintiff/appellant “conceded that ‘the entire case is part of the mediation. . . . ‘”
Furthermore, plaintiff did not “attempt to show that any particular document was not subject to mediation confidentiality or was erroneously excluded.”
TIP: Given how very difficult it is to find an exception to mediation confidentiality, if you are going to argue that documents should not have been excluded based on Evid. Code 1119, at least focus on specific evidence, and show that exclusion resulted in prejudice. “It is plaintiff’s burden on appeal to show not only error, but also prejudice from the exclusion of evidence.”
For a discussion of attorney’s fees in a companion case, Syers Properties III, Inc. v. Rankin, Case No. A137610, see the May 6, 2014 blawg post on California Attorney’s Fees.
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