Metropolitan News-Enterprise


Tuesday, June 10, 2001


Page 1


S.C. Rejects Misconduct Exception to Mediator Confidentiality


By KENNETH OFGANG, Staff Writer/Appellate Courts


Statutes requiring the confidentiality of mediation are not subject to an exception that would allow a mediator to report to a court that a party has failed to participate in court-ordered mediation in good faith, the state Supreme Court unanimously ruled yesterday.

Rejecting the conclusion of this district’s Court of Appeal that a narrow “sanctionable conduct” exception exists, Justice Marvin Baxter concluded that the Legislature has adopted a “clear and unambiguous” rule of confidentiality, to which the judiciary may not create exceptions.

The court agreed to decide the issue after the appellate panel threw out a $30,000 sanctions award against Bramalea California, Inc., a condominium developer being sued by owners in a 65-unit Culver City project called Foxgate over alleged construction defects.

Suit was filed in 1993. In 1997, Los Angeles Superior Court Judge—now Court of Appeal Justice—Daniel A. Curry appointed retired Los Angeles Superior Court Judge Peter Smith as mediator and discovery referee in the case.

The homeowners association later moved for sanctions against the developer and its attorney, Ivan K. Stevenson. In support of the motion it relied upon a report by the mediator, asserting that Stevenson “has spent the vast majority of his time trying to derail” mediation, that he showed up late for a session, and that he “refused to bring his experts to the mediation.”

Stevenson, Smith said, appeared to be delaying in order to bring a motion for summary judgment, possibly as a tactic to induce a reduction in the claims. The retired jurist called Stevenson’s conduct “obstructive” and said it had caused a cancellation of the remaining mediation sessions, “at a substantial cost to all parties.”

Bramalea and Stevenson objected to the Smith report under Code of Civil Procedure Secs. 1119 and 1121.

Admissibility Addressed

Sec. 1119 provides in part that “[n]o 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…in any…civil action.”

Sec. 1121 provides:

“Neither a mediator nor anyone else may submit to a court . . . and a court . . . may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law . . . .” 

The trial judge overruled the objections and imposed sanctions. The Court of Appeal agreed that there was a limited exception to confidentiality, but reversed and remanded for reconsideration on the ground that the Smith report included material that was unnecessary to the consideration of the sanctions issue.

Smith Report

Baxter, writing for the high court, said the Court of Appeal was correct in sending the case back, but that no portion of the Smith report may be considered on remand.   

The lower panel erred, Baxter said, in relying on public policy to fashion an exception to an unambiguous statute. The Court of Appeal, he said, “violated the principle that mediators are to assist parties in reaching their own agreement, but ordinarily may not express an opinion on the merits of the case” and “has created a vague and inconsistent exception to the mandate of confidentiality, one that the Legislature did not authorize.”

Confidentiality, he said, is “absolute” in the absence of legislatively created exceptions. Lawmakers did adopt one such exception, he noted, permitting disclosure of criminal conduct.

The statutes, Baxter commented, represent a legislative judgment favoring confidentiality even “against a policy that might better encourage good faith participation in the process.”

The case was argued in the Supreme Court by Jon B. Eisenberg of Horvitz & Levy for Bramalea and Stevenson and by Leonard Steiner of Steiner & Libo for the homeowners.

The case is Foxgate Homeowners’ Association v. Bramalea California, Inc., 01 S.O.S. 3266.


Copyright 2001, Metropolitan News Company