Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, July 26, 2007

Mediation Confidentiality

2distcalif_2  Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (Cal. Ct. App., 2007), is an important decision where a California state appellate court held that mediation confidentiality barred discovery of mediation briefs and e-mails. The plaintiff had sought this information in connection with a malpractice action against his former lawyer. The plaintiff had alleged that the attorney breached his fiduciary duty by submitting unauthorized material during mediation. Relying on California law, which provided that mediation was confidential, the court held that the plaintiff was not entitled to this disclosure. Interestingly, the court did expressly stated that it was not recognizing a mediation privilege, but instead was recognizing mediation confidentiality.

Surprising there has actually been a number of cases in California, which the court reviews, concerning mediator confidentiality. The decision is lengthly and well written. It also cites to a number of law review articles concerning this topic.

For mediation to have any chance of working, the parties must be able to speak frankly. Confidentiality encourages such frank communications. I believe the court got it right. Though this case had nothing to do with labor relations, the same principles should apply to a labor mediation.

Mitchell H. Rubinstein

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