Woodland Hills car accident attorney Barry P. Goldberg always recommends mediation to his clients whenever a resolution cannot be obtained through informal negotiations. Often, these are cases that are litigated and hotly contested. The mediation process can be emotional and draining. When unsuccessful, clients are often shocked to learn that everything that was said and done at the mediation was strictly confidential and cannot later be used for any purpose. The confidentiality encompasses monetary offers exchanged and representations of fact “floated” by the adverse party.
On more than one occasion, I have had clients suggest that we will “nail” the opposing party on some fact that was proffered during the mediation or that the jury will be upset when they hear about the initial “low ball” offers. With very few exceptions, everything said and done at a mediation will never see the light of day. Evidence Code section 119, provides:
“(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any … noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
“(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any … noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
“(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”
Basically, the California Supreme Court confirms the breadth of the confidentiality even if in legal malpractice cases. See, Cassel v. Superior Court (2011) 51 Cal. 4th 113.
As an experienced car accident attorney, Barry P. Goldberg knows how to take important information obtained in a mediation and take it out of the confidential context. For example, we make it a practice to serve a CCP 998 Offer to Compromise immediately after a mediation for either the last demand amount or the amount recommended by the mediator. While it is true that we cannot go back and later explain how the proposed settlement amount was arrived at, the actual number of the Offer to Compromise becomes “public knowledge” and easily outside the mediation privilege.
There are many other ways to utilize information obtained in the mediation context through discovery techniques. An experienced car accident attorney can assist you in leveraging almost any mediation without running afoul of the confidentiality privilege.
