California Mediation Confidentiality May Apply to Third Party “Participants” Retained to Provide Analysis

California Evidence Code section 1119 governs the general admissibility of oral and written communications generated during the mediation process. Section 1119(a) provides that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . . civil action . . . .” Cal. Evid. Code § 1119(a) (emphasis added). Similarly, section 1119(b) bars discovery or admission in evidence of any “writing . . . prepared for the purpose of, in the course of, or pursuant to, a mediation . . . .” Cal. Evid. Code § 1119(b) (emphasis added). Finally, section 1119(c) provides that “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation . . . shall remain confidential.” Cal. Evid. Code § 1119(c) (emphasis added).

“[T]he purpose of these provisions is to encourage the mediation of disputes by eliminating a concern that things said or written in connection with such a proceeding will later be used against a participant.” Cassel v. Superior Court (2011) 51 Cal.4th 113, 124. The protections afforded by this privilege apply to any writing prepared in connection with mediation, and are not limited by the identity of the communicator as a party, disputant, or participant in the mediation, or by the communication’s nature. Id. at 125, 130 (noting that “‘[p]articipants’ are not defined in the statutory text, but they are mentioned at several points in the statutory scheme, under circumstances making clear that the term ‘participants’ includes more than the mediation parties or disputants”); see also id. at 131 (noting that “[t]he California Law Revision Commission comment following section 1122 states . . . that “mediation documents and communications may be admitted or disclosed only upon agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation (e.g., a disputant not involved in litigation, a spouse, an accountant, an insurance representative, or an employee of a corporate affiliate),” which constitutes a non-exhaustive list of persons properly classified as “participants”). “Mediation confidentiality is to be applied where the writing, or statement would not have existed but for a mediation communication, negotiation, or settlement discussion.” Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 160.

Based on the California Supreme Court’s analysis in Cassel and the California Law Revision Commission comment, a colorable argument can be made that third parties retained for the purpose of providing analysis in preparation for mediation will fall within the definition of “participants,” making their analysis—and possibly even related deposition testimony—confidential once the mediation process has concluded, unless all participants to the mediation agree to waive the confidentiality pursuant to California Evidence Code section 1122.