Simmons v. Ghaderi: When the Legislature Said Mediation Was Confidential, It Meant What it Said

Today, the Supreme Court handed down a unanimous ruling in the long-awaited Simmons v. Ghaderi case about which I’ve commented on many occasions — both on the importance of the confidentiality laws the Supreme Court held were air-tight today and on the process itself as a common example of a failed mediation proceeding.

Highlights from the opinion:

• “The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process.”
• [T]he legislative history of the mediation confidentiality statutes as a whole reflects a desire that section 1115 et seq. be strictly followed in the interest of efficiency. By laying down clear rules, the Legislature intended to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation. (citation omitted).  Allowing courts to craft judicial exceptions to the statutory rules would run counter to that intent.”
• In Foxgate,  we reasoned we “were bound to respect the Legislature’s policy choice to protect mediation confidentiality rather than create a procedure that encouraged good faith participation in mediation. Thus, we held that evidence of a party’s bad faith during the mediation may not be admitted or considered.”

Here’s the appellate decision that was reversed on nearly every ground raised in Justice Aldrich’s compellingly well-reasoned dissent.

Here are our previous commentaries:

Take Steps to Ensure Mediation Agreements Can Be Enforced (co-authored by local arbitrator and mediator Deborah Rothman, first published in the Daily Journal)

You Say Waiver, I Say Estoppel, Let’s Call the Whole Thing Wrong — Another Look at Simmons v. Ghaderi

If I Settle, It Will Mean that I Killed Her — Anatomy of a Failed Medical Malpractice Mediation, at the National Institute for Advanced Conflict Resolution

Here’s a view that opposes my own — Kirk Pasich Replies:  the Mediation Privilege and Bad Faith Carrier Conduct.

                       

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >