World Arbitration And Mediation Review (WAMR) - 2003 Volume 14 No. 1
About the Editor:
Thomas E. Carbonneau holds the Samuel P. Orlando Distinguished Professorship at Penn State Law and directs The Penn State Institute on Arbitration Law and Practice. In his thirty-year career in law teaching, he has taught law and arbitration at Tulane University, Fordham, McGill, University of Denver, Hamline Dispute Resolution Institute, and University of California at Davis. He is a former Editor-in-Chief of the World Arbitration and Mediation Report and is the author of nearly twenty books and numerous articles on law and arbitration. He is the faculty adviser for the Penn State Yearbook on Arbitration and Mediation and its Vis Moot Court team.
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Mediation and the Evidentiary Privilege in California
In Rojas v. Los Angeles Superior Court, 126 Cal. Rptr. 2d 97 (Ct. App. Oct. 10, 2002), a California appeals
court held that sections 1119 and 1120 of the state’s evidence code, which protects the admissibility of certain
evidence gathered during the mediation process, does not cover raw data or evidentiary material that would
otherwise be admissible in a litigation proceeding. The court stated that the relevant sections were meant to
constitute a mediation privilege and to encourage parties to enter into mediation without fear that
communications and negotiations would be used against them in future proceedings.
The petitioners in Rojas were tenants who claimed that the “presence of toxic molds and other microbes” in
their apartment building caused them serious medical harm. The complaint resulted in a mediation between the
owner of the building and various construction companies. In the mediation proceeding, there was extensive
discovery of pictures, lists, and tests dealing with construction defects which had allegedly led to the water
leakage and subsequent microbial infestation. In Rojas, the petitioners requested the production of certain
necessary evidence from the mediation, which included numerous photographs, lists, and test results (such as
spore counts) that had been introduced.
The question at issue was whether the mediation privilege in the evidence code extended to factual material
presented in a mediation proceeding. The trial court held that “all documents submitted in compilation form for
the mediation were privileged.” The appeals court reversed, holding that sections 1119 and 1120 only apply to
the “substance of the mediation.” Further, the court noted that “substance” refers to the communications and
admissions made by the parties during the mediation in order to reach a conclusion on the dispute and that “pure
evidence” is not meant to be protected under the statutes. Section 1119 specifically states that “writings,
statements, and communications” of a mediation are protected. It necessarily follows that there are unprotected
items as well. Section 1120 provides that the simple introduction of evidence in a mediation hearing does not
automatically afford it protection. Accordingly, the court concluded that “non-derivative” material such as test
results, witness statements, and photographs were not protected by the mediation privilege.
IN THIS ISSUE
NEWS AT HOMEMediation and the Evidentiary Privilege in California Certiorari Denied:Labor and Employment Arbitration: Arbitrator Exceeded Scope of Authority by Reading Past Practices Into CBA Certiorari Denied: Labor and Employment Arbitration: Enforcement of Arbitration Award for Employee’s Reinstatement not Violative of the Norris-LaGuardia Act Intent Required to Incorporate Terms of One Arbitration Clause Into Another Contract Texas Court Enforces Mediated Settlement Dictated to Court Reporter Despite Allegation of Only Conditional Approval by a Party Maine Supreme Court Affirms Award of Prejudgment Interest Based on Mediated Settlement of a Workers Compensation Claim Florida Appeals Court Rules That an Insurer’s Unilateral Mistake Is Insufficient to Set Aside Mediated Settlement NEWS ABROAD Alternative Dispute Resolution Gains Acceptance in Mexico “Protocol of Intent” Signed by CPR Institute and Russian Union COMMENTARY Certiorari Sought in Case Raising Major Issues for Arbitration by Daniel Q Posin, Securities Arbitration Editor JUDICIAL DECISIONS Ninth Circuit Says Recent U.S. Supreme Court Ruling Overturns its Decision Barring Title VII Arbitration Seventh Circuit Upholds Ruling Finding Confirmed Chapter 11 Plan Bars Enforcement of Contractual Arbitration Clause Ninth Circuit Overrules District Court’s Determination That State Commission’s Arbitration of Interconnection Agreements met Federal Statutory Requirements STATE JUDICIAL DECISIONS Wisconsin Supreme Court Determines That Dismissal is Unwarranted Sanction for Filing Suit Prior to Expiration of Statutorily-Required Mediation Period Florida Appeals Court Disqualifies Law Firm Where a Newly-Hired Member of the Firm had Previously Served as Mediator for the Parties Court Holds Foreign Country Judgment not Entitled to Recognition in Texas Because Parties Agreed to Arbitration PERSPECTIVES Global Trends in Mediation, by Nadja Alexander, Editor A) ADR in England and Wales B) Mediation in Scotland C) Mediation in Austria D) Mediation in Civil Cases in Denmark RESOURCES Recent Opinions in Domain Name Disputes The National Arbitration Forum CALENDAR