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Provost v. Regents: How The California Courts Are Applying Mediation Confidentiality After The Cassel Decision

On January 13, 2011, the California Supreme Court filed its opinion in the case of Cassel v. Superior Court (2011) 51 Cal.4th 113.  Most people would agree that the Cassel decision strengthened mediation confidentiality in California.  It essentially held that mediation confidentiality is so important that it even overrides a malpractice plaintiff’s interest in gathering evidence against his or her attorney regarding mediation-related activity.

How will the California lower courts react to Cassel?  Will they also support strong mediation confidentiality?  Or will they try to undermine or refine the Cassel decision?  The case of Provost v. The Regents of the University of California (2011) 201 Cal.App.4th 1289, provides some interesting initial clues.

Provost was decided in December 2011 and appears to be first published California case to apply the Cassel decision.  The plaintiff Provost appealed from a judgment entered pursuant to a stipulation for settlement reached at mediation with the Regents of the University of California.  Provost raised various issues on appeal including two issues which touched upon mediation confidentiality.

The first mediation confidentiality issue was that Provost argued that the stipulated settlement could not be enforced because he was allegedly coerced into signing it by both defendants’ counsel and his own.  More specifically, he contended that the mediator told him during the mediation that the Regents would have criminal charges filed against him if he did not sign the stipulated settlement that night.  Also, Provost’s own lawyers allegedly informed him that he had little chance of success at trial and that any award would be low if he did prevail.

The Provost appellate panel did not comment on the substance of this alleged duress and coercion.  Instead, it agreed that the trial court correctly determined that the evidence Provost offered in support of his claim was protected from disclosure by the mediation privilege.  The appellate panel cited language contained in California Evidence Code section 1119 which described Californian mediation confidentiality protections.

The Provost appellate panel noted that a pre-Cassel case, Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, held that the California Evidence Code unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.  It also noted that the Cassel decision held that encouraging the use of mediation to resolve disputes requires broad protection for the confidentiality of communications exchanged as part of that process, even though such protection may sometimes preclude valuable evidence. 

It went on to reject Provost’s argument that he was allowed to report obstructive conduct during the mediation.  The appellate panel held that Provost was not actually attempting to report conduct (such as a refusal to appear at a court-ordered mediation) but instead was trying to reveal protected communications.  The court also declined to create a good cause exception to the confidentiality requirement that would cover the so-called conduct.

The court next rejected Provost’s argument that defendants’ counsel and his own lawyers made statements that were criminally prosecutable and which could be disclosed.  It noted that the Cassel case contained language about an exclusion for use in a criminal prosecution.  But it then held that Provost’s case was not a criminal action and his claim that the disputed statements somehow constituted a crime did not exempt those statements from confidentiality protection. 

The court also stated that Provost’s case did not fall under a possible judicially-created exception to the mediation confidentiality protection related to the due process rights of a minor.  It also rejected an argument that the trial court otherwise violated his due process rights by refusing to consider evidence of alleged coercion.

Turning to the other mediation confidentiality issue, the court also rejected plaintiff Provost’s contention that the stipulated settlement was not admissible because it was protected by mediation confidentiality.  The court relied on language in Evidence Code section 1123 providing that a written settlement agreement made during a mediation may be disclosed if it is signed by the settling parties and the agreement states that it may be disclosed or admitted, or that it states that it is binding or enforceable.   The disputed Provost settlement satisfied section 1123.

The court further rejected Provost’s argument that California Evidence Code section 1122 barred disclosure because there were two other participants at the mediation who did not sign the settlement agreement and did not agree to disclosure of it.  The court noted that Evidence Code section 1122 allows for disclosure when the writing is prepared by or on behalf of fewer than all of the mediation participants, and when that sub-set of participants agrees to disclosure.  The two parties in the Provost case who did not agree to disclosure of the settlement agreement were not parties to the stipulated settlement and their consent was not required.

In conclusion, the Provost court appeared to follow the California Supreme Court’s lead in Cassel.  The Provost court aggressively enforced mediation confidentiality protection and looked askance at a party which apparently had some “buyer’s remorse” about signing a settlement agreement.  I think most mediators would generally welcome this as part of a good trend.


Peter Huang

Peter O. Huang is a California attorney and mediator. He is a 1999 graduate of U.C. Berkeley’s law school and has been practicing law for over a decade. Peter has extensive litigation experience in a variety of areas. He is a mediator who focuses on commercial litigation, intellectual property disputes,… MORE >

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