Back in the mid-1990s, there was a general perspective among mediators that California law provided inadequate confidentiality within the mediation process. Then in 1997, the legislature passed the California Mediation Act, which included a chapter on confidentiality and privilege, at Evidence Code §§1115 et. seq. This legislation set forth virtually absolute rules protecting confidentiality in the mediation process.

Then, the court of appeal decided Foxgate Homeowners’ Association v. Bramalea California Inc., 78 Cal.App.4th 653 (2000). In Foxgate, an appointed hybrid mediator/discovery master required the parties to appear with their experts for five days of hearing. Defense counsel refused to bring his experts, saying he didn’t want to respond to the plaintiff’s frivolous claim. The mediator prepared a report to the court, a procedure the parties had agreed to, and based on that report’s conclusion that counsel had delayed and obstructed the mediation process, the trial court sanctioned defense counsel. The appeals court wrote that “[w]hile confidentiality is essential to make mediation work, so too is the meaningful, good faith participation of the parties and their lawyers.” Concluding that no privilege should be read so broadly as to immunize parties and their lawyers from sanctions for disobeying court orders, the court held the mediation privilege must be waived notwithstanding the clear statutory language.

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