Parties’ Agreement To Extend Mediation Beyond Ten-Day Period Following Communication With Mediator Made Evidence Inadmissible

     Boy, does this case, involving a dispute between client (Porter) and attorneys (Wyner) have a history.  After the California Supreme Court ruled in Simmons v. Ghaderi, 44 Cal.4th 570 (2008) that waivers of mediation confidentiality by either implication or estoppel were not permitted because the applicable statute allowed only express waivers by all (or in some cases fewer than all) mediation participants, Wyner moved for a new trial, on the grounds that the jury had improperly relied on inadmissible evidence subject to the mediation privilege, which privilege could not be orally waived.  The trial court agreed, granting a new trial.

     Porter appealed, resulting in a first appellate decision holding Simmons v. Ghaderi did not apply to implied waivers of mediation confidentiality as to communications between a party and its own attorney.  Porter v. Wyner, 183 Cal.App.4th 989 (Porter I). 

     However, the narrow interpretation of the mediation privilege in Porter I was rejected in Cassel v. Superior Court, 51 Cal.4th 113 (2011), holding that mediation confidentiality applies to all communications during or pursuant to a mediation, even those between a client and his or her attorney.  That led to Porter II, in which the Court of Appeal affirmed the order granting Wyner a new trial and remanded the matter with directions that the trial court rule on Wyner’s JNOV motion.  Porter v. Wyner, B211398 (July 27, 2011) (nonpublished).  The trial court denied Wyner’s JNOV, prompting the present appeal.  Wyner v. Porter, B242025 (2nd Dist. Div. 8 Dec. 18, 2013) (unpublished).

     While the exclusion of information properly subject to mediation confidentiality, but improperly admitted at trial, helped Wyner obtain a new trial, the exclusion of evidence did not help Wyner with its JNOV motion, because the motion relied on evidence eventually determined to be inadmissible.

      A threshold issue for the Court of Appeal was determining when mediation ended, and thus, when mediation confidentiality ended.  Wyner took the position that mediation ended ten days after the last communication with the parties, pursuant to Evid. Code section 1125(a).  However, as I have explained in a post dated March 26, 2012, mediation confidentiality may be extended if the parties agree to extend the 10-day period set out in Evidence Code section 1125(a)(5).  Porter took the position that the parties had agreed in writing to extend the 10-day period, at least until settlement.  If Porter was right, then evidence relied upon by Wyner in its JNOV motion was inadmissible.

     To answer the threshold question, the Court had to address the admissibility of the mediation confidentiality agreement in which the parties waived section 1125, subdivision (a)(5).  In other words, was the agreement to extend the mediation period, and hence, confidentiality, itself confidential?   Here, the Court pragmatically ruled that “[i]t would stand the mediation confidentiality scheme on its head to prohibit the trial court from examining a written agreement that arguably contained such a waiver. . . . the trial court could examine the confidentiality agreement for the sole purpose of making a finding as to when mediation ended in order to consider the applicable time period of confidentiality.” 

      The Court affirmed the order denying Wyner’s JNOV motion, and affirmed the order granting a new trial.

      DRAFTING TIP:   Make sure all the parties and the mediator sign the mediation confidentiality agreement, and if the ground rules set by a mediation confidentiality agreement may become relevant in the future, include a provision expressly making the confidentiality agreement admissible.