First, the good news: The California Legislature, via the Rojas decision, wants to encourage mediation.

Now the bad news: Rojas shows that the current law, California Evidence Code Section 1115 et seq., fails to get the job done. The statute, as construed in Rojas, exalts the policy of “absolute confidentiality” – and absolute confidentiality alone – as the key to the encouragement and effectiveness of mediation.

But other policies can encourage mediation use too. The current law, however, fails to take those other policies into account, much less strike an appropriate balance between those other policies and the policy of confidentiality when those policies conflict. For now, absolute confidentiality reigns supreme.

And it may kill mediation.

One particular policy stands in the starkest conflict with absolute confidentiality and must be taken into account if California mediation is to survive. When parties bring their disputes to mediation, they must be assured that they will receive quality service. Why would anybody come to mediation – much less pay for the privilege of participating – if the quality of service were not assured?