Confidentiality in Mediation: Is It Encouraging Good Mediation or Bad Conduct

Authors

Sarah Williams

Abstract

Mediation has long been used in the judicial system of the United States to offer an alternative to litigation which can save time and money. Not only have its cost-effective and time efficient attributes contributed to its use, but the judiciary and legislature have often encouraged its use in order to mitigate the number of cases in the court system. In some states, the legislature has enacted statutes to make mediation mandatory before certain adjudications will even take place. Furthermore, to encourage these mediations to settle, many legislatures and jurisdictions have enacted statutes to protect the confidentiality of the mediation. Many courts have upheld these statutes to continue to encourage mediation while some have made exceptions based on other conflicting legal issues. In Rojas v. Superior Court of Los Angeles County, the California Supreme Court sought to encourage mediation by protecting the confidentiality of many types of evidence used in mediation from being admissible in subsequent litigation. The court overturned an appellate court decision that made policy arguments contrary to the California Supreme Court's interpretation. This Note addresses whether the California Supreme Court's policy arguments for protecting confidentiality in mediation outweigh the policy arguments against protection outlined in the appellate court's decision.

Recommended Citation

Sarah Williams, Confidentiality in Mediation: Is It Encouraging Good Mediation or Bad Conduct, 2005 J. Disp. Resol. (2005)
Available at: https://scholarship.law.missouri.edu/jdr/vol2005/iss1/14