For many ADR practitioners, the view of the California Supreme Court’s long-awaited Rojas decision changed almost instantaneously from “What did it say?” to “How are we going to fix this?”

On its face, the decision in Rojas v. Superior Court of Los Angeles County, 93 P.3d 260 (July 12, 2004)(available at www.courtinfo.ca.gov/ opinions/documents/S111585.PDF) is a strong backing for the state’s existing mediation confidentiality statute. The statute was upheld, and the state’s top court rejected as judicial gloss an appeals court ruling that certain materials from a mediation setting, such as photographs and witness statements, could be discoverable if the case wound up back in court.

The decision eliminates the potential confusion over different categories of confidential and discoverable mediation evidence.

But the case still divides the mediation community.

Some say that the absolute privilege, subject to the statute’s limited exceptions, is a plain reading that could ruin California mediation practice. They have vowed to take their case to the Legislature in 2005 and amend the statute.

The unanimous July 12 Rojas opinion, written by Justice Ming Chin, overturned an appeals panel decision that provided a privilege for mediation materials under California Evidence Code Section 1119, along lines similar to those provided to work product under the state’s Civil Procedure Code Section 2018. See Rojas v. Superior Court, 126 Cal. Rep.2d 97 (2002).