Exceptions To Confidentiality of Communications Are Very Limited, and Showing Sancitonable Conduct Is Not One of the Exceptions

     In Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc., 26 Cal.4^th 1, 108 Cal.Rptr.2d 642 (2001), the Supreme Court faced,”the intersection between court-ordered mediation, the confidentiality of which is mandated by law (Evid.Code, §§ 703.5, 1115-1128), [footnote omitted] and the power of a court to control proceedings before it and other persons “in any manner connected with a judicial proceeding before it” (Code Civ. Proc, § 128, subd. (a)(5)), by imposing sanctions on a party or the party’s attorney for statements or conduct during mediation.” Cutting to the chase, the court concluded that mandated confidentiality in mediation trumped the ability of the court to impose sanctions.

     The mediator, in a report to the Court, had slammed defense counsel for purportedly sandbagging the mediation. The problem was that the mediator’s report disclosed confidential information. The Court of Appeal had fashioned a narrow exception to absolute confidentiality, allowing the mediator to include statements that supported sanctions. But the mediator’s report had gone beyond that, enabling the Court of Appeal to reverse the trial court order imposing sanctions.

     The Supreme Court concurred in the result, but disagreed with the Court of Appeal’s reasoning: “Neither a mediator nor a party may reveal communications made during mediation. The judicially created exception fashioned by the Court of Appeal is inconsistent with the language and the legislative intent underlying sections 1119 and 1121. We also conclude that, while a party may do so, a mediator may not report to the court about the conduct of participants in a mediation session.” 26 Cal.4^th at 644-645.