ADR Case Updates
Mediation Briefs and E-mails Are Protected, 07/18/07
In case you have not seen it, attached is the recent Court of Appeal decision in Wimsatt v. Superior Court (Second District, Div. Three), 2007 DJDAR 8961, holding that mediation briefs and e-mails referencing them are made in the course of mediation and protected communications under mediation confidentiality statutes.
Corey Kausch filed a legal malpractice case against his former attorney, William Wimsatt, and others relating to a prior personal injury action arising from injuries he sustained in a plane crash. The personal injury case ultimately settled in mediation.
Kausch then sued Wimsatt claiming Wimsatt lowered Kauschs settlement demand in the personal injury action without the latters knowledge or consent, thereby causing the settlement amount to be lower. Kausch sought to discover the mediation briefs generated in the personal injury action and e-mails that discussed those briefs. The trial court denied Wimsatts motion for a protective order. Wimsatt sought a writ of mandate because the briefs and e-mails were confidential and protected as "mediation-related communication."
Writ granted. Evidence Code Sections 1115, 1110, and 1120 protect communications made in the course of mediation from being used in subsequent proceedings, and should be strictly construed by the courts. Section 1119 protects from discovery any written or oral communication made "for the purpose of, in the course of, or pursuant to, a mediation," and "communications, negotiations, or settlement discussions by and between participants in the course of a mediation." Settlement briefs are an integral part of the mediation process and epitomize the types of writings the mediation statutes are meant to protect from disclosure. So also, e-mails are "writings" for purposes of mediation confidentiality, even though in electronic form, and should be protected from disclosure since they referenced and quoted from the briefs.
This case in another example of the courts emphasis on mediation confidentiality that is "essential to effective mediation," even if there are conflicting public policies and even if the equities in a particular case suggest a contrary result (the courts ruling effectively emasculates Kauschs malpractice claim).
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