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By John W. Ralls
An
HOA sued the developer and subcontractors for defects in
a condominium complex. The trial court entered a comprehensive
case management order that, among other things, appointed
a retired judge to act as a mediator.
The
mediator scheduled five mediation sessions. The plaintiff
attended the first session and brought nine experts. The
developer's attorney arrived 30 minutes late and brought
no defense experts. The developer's attorney also reportedly
made a number of brash statements, including that he did
not need experts because of his vast knowledge in the field
of construction defect litigation.
The
remaining mediation sessions were cancelled because the
mediator concluded they could not proceed without defense
experts. Two days after the mediation, the mediator filed
a report that stated various reasons why the developer's
attorney's "real agenda was to delay the mediation
process…." The mediator resigned, and a second
mediator was appointed. After one mediation session, the
new mediator advised the court that further mediation would
not be productive.
The
plaintiff filed motions for sanctions and cited evidence
of what the developer's attorney said during the mediation
sessions. The trial court awarded sanctions, and the developer
appealed.
The
Court of Appeal held that a mediator may reveal information
necessary to place sanctionable conduct in context, including
communications made during mediation. However, the Court
of Appeal ruled that the first mediator's report contained
more information than necessary and reversed the order imposing
sanctions. The California Supreme Court granted review.
The issue presented was whether there are any exceptions
to the mediation confidentiality provisions set forth in
Evidence Code §§1119 and 1121.
The
Supreme Court held that any evidence of communications during
the mediation is inadmissible and may not be considered
by the court. Foxgate Homeowners' Assn. v. Bramalea California,
Inc., 26 Cal.4th 1, 108 Cal.Rptr.2d 642 (2001). The
court found that §§1119 and 1121 were clear and
that there was no need for a judicially crafted exception
either to carry out the purpose for which the statutes were
enacted or to avoid an absurd result. "Whether a mediator…
should be allowed to report conduct during mediation that
the mediator believes is taken in bad faith and therefore
might be sanctionable under CCP § 121.5… is a
policy question to be resolved by the Legislature."
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