The Case, Though Unpublished, Is Timely, With California Law Revision Commission Considering Changes In Mediation Confidentiality.
Chodosh v. Trotter, et al., D070952 & D070953 (4/1 9/13/17) (Benke, Haller, Dato) (unpublished) offers us a veritable mini-treatise on the mediation confidentiality privilege -- most timely, given ongoing efforts by the California Law Revision Commission to create exceptions to mediation confidentiality.
In the trial court, members of a mobile home park sued the mobile park owner's Association alleging special assessments had been improperly assessed against plaintiffs. After Judge Stock, the trial judge, retired and joined JAMS, the case was reassigned to Judge Moss, whereupon the plaintiffs moved to disqualify Judge Stock and to void her order for a jury trial retroactively. Plaintiffs claimed that the mediator, Justice Trotter (ret.), allegedly threatened, in front of the Association's directors, to tell Judge Stock, "that plaintiffs were the reason the case did not settle." Plaintiffs further complained about "the purported failure to disclose Judge Stock was joining JAMS." Judge Moss denied the requests, plaintiffs filed a petition for writ of mandate to vacate his ruling, and the writ was denied. Plaintiffs then filed the Chodosh lawsuit against Justice Trotter and JAMS for numerous claims, alleging mediator misconduct. The trial court granted defendants' anti-SLAPP motion, and found the statements allegedly made by Justice Trotter to be inadmissible, because they were covered by the mediation privilege, quasi-judicial immunity, and the litigation privilege.
In their appeal, plaintiffs made many ingenious arguments in their attempt to pierce the mediation confidentiality privilege. For example, they argued that a mediation had not occurred, because the mediator was not "neutral." They argued that the mediation violated due process and led to an absurd result. They claimed without evidence that the mediator's conduct was criminal. They argued that defendants, by their silence, conceded illegality through an adoptive admission. They argued that the trial judge had improperly sent the matter to Justice Trotter, at a time when she purportedly was engaged in discussions to move to JAMS after retirement. They argued that they were extorted. None of these arguments, however, held traction, and thus, the trial court's orders and judgment were AFFIRMED. Chodosh shows once again that it is nearly impossible to pierce mediation confidentiality in order to build a case based on alleged mediator misconduct.
COMMENT: One of the more recondite provisions relied upon by plaintiffs to seek the disqualification of Judge Stock was California Code of Civil Procedure, section 170.1(a)(8), which supports disqualification if the judge has an arrangement concerning prospective employment as a dispute resolution neutral and directs the parties to participate in dispute resolution with the entity with which she is seeking employment. There are good reasons for such a provision. Here, however, it appears that there was a lack of evidence to show (a) that the trial judge had directed the parties to mediate with JAMS; and (b) that she was negotiating with JAMS while the matter was being mediated at JAMS.
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