Evidence used in Roofing Mediation

[AgentSmithers]

What is the name of your state (only U.S. law)? California

Hi Everyone,
I don't know if this is the correct topic to post in but if needed I will be glad to move it.
Evidence in mediations is normally privileged given certain circumstances and are inadmissible in court.
However,
Does anyone know if evidence given by one party during mediation is inadmissible as evidence to another party in a whole different case?

Example,
If Person A Sues Person B and goes to mediation and Person B gives person An an invoice from Person C stating that they were the ones that actually executed the task. Can that be used against person C for a whole different law suite? (EC 1119)

Can one act on information obtained through mediation such as a new defendant for another lawsuite?

Thanks for any feedback.
-Agent

 

[quincy]

What is the name of your state (only U.S. law)? California

Hi Everyone,
I don't know if this is the correct topic to post in but if needed I will be glad to move it.
Evidence in mediations is normally privileged given certain circumstances and are inadmissible in court.
However,
Does anyone know if evidence given by one party during mediation is inadmissible as evidence to another party in a whole different case?

Example,
If Person A Sues Person B and goes to mediation and Person B gives person An an invoice from Person C stating that they were the ones that actually executed the task. Can that be used against person C for a whole different law suite? (EC 1119)

Can one act on information obtained through mediation such as a new defendant for another lawsuite?

Thanks for any feedback.
-Agent

Here is a link to a paper written by Ehrlich, Quintero, Vishneski, Brown and Castriotta, published by the American Bar Association, on the confidentiality of mediation materials (with a special section on California):

https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2016_insurance_coverage_litigation_committee/written_materials/1_how_confidential_are_mediation_communications_final_paper.authcheckdam.pdf

The paper answers your question.

 

[AgentSmithers]

Here is a link to a paper written by Ehrlich, Quintero, Vishneski, Brown and Castriotta, published by the American Bar Association, on the confidentiality of mediation materials (with a special section on California):

https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2016_insurance_coverage_litigation_committee/written_materials/1_how_confidential_are_mediation_communications_final_paper.authcheckdam.pdf

The paper answers your question.

Thank you so much, Quincy,
Amazing read. I want to confirm I am interpreting this correctly. It appears that if a writing was made in the ordinary course of business and not for the sole purpose of mediation but offered during meditation is admissible via EC 1120 and if they didn't want that they should have crafted a confidentiality agreement saying otherwise.
An addtional discovery would not have to be filed to leverage the document obtained during mediation correct?
And even further, It can be made admissible use to pursue another party not a member of the mediation? (page 8 of 10)
I appreciate your helpful feedback on this Quincy.
Thank you again.

(b) What Happens Under California and the UMA?
Under California law, statutes protect the confidentiality of mediation negotiations and related
oral and written materials. California Evidence Code § 1126 (“Anything said, any admission
made, or any writing that is inadmissible, protected from disclosure, and confidential under this
chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and
confidential to the same extent after the mediation ends.”); Simmons v. Ghaderi, 44 Cal.4th 570,
- 7 -
583 (2008) (“[T]he mediation confidentiality statutes unqualifiedly bar disclosure of certain
communications and writings produced in mediation absent an express statutory exception.”).
California Evidence Code § 1119 applies to communications and writings made for “the purpose
of, in the course of, or pursuant to, a mediation or mediation consultation.” (Evidence Code §
1119.) California Evidence Code § 1120 provides that “evidence otherwise admissible or subject
to discovery outside of a mediation or a mediation consultation shall not be or become
inadmissible or protected from disclosure solely by reason of its introduction or use in a
mediation or mediation consultation.” (Evidence Code § 1120.)
California cases construe the phrase, “parties to the mediation,” as used in the California
Evidence Code, to include insurers who are actual participants in the mediation. See, e.g.,
Travelers Cas. & Sur. Co. v. Super. Ct., 126 Cal.App.4th 1131, 1146, n. 18 (2005).

 

[quincy]

Thank you so much, Quincy,
Amazing read. I want to confirm I am interpreting this correctly. It appears that if a writing was made in the ordinary course of business and not for the sole purpose of mediation but offered during meditation it is admissible via EC 1120 and if they didn't want that they should have crafted a confidentiality agreement saying otherwise.
I appreciate your helpful feedback on this Quincy.
Thank you again.

I believe you are reading it correctly but you can double check with an attorney licensed to practice in California.

 

[AgentSmithers]

I believe you are reading it correctly but you can double check with an attorney licensed to practice in California.

Thank you again, sir. I appreciate you.

 

[quincy]

Thank you again, sir. I appreciate you.

You're welcome, AgentSmithers. I appreciate the thanks.

 

[latigo]

What is the name of your state (only U.S. law)? California

Hi Everyone,
I don't know if this is the correct topic to post in but if needed I will be glad to move it.
Evidence in mediations is normally privileged given certain circumstances and are inadmissible in court.
However,
Does anyone know if evidence given by one party during mediation is inadmissible as evidence to another party in a whole different case?

Example,
If Person A Sues Person B and goes to mediation and Person B gives person An invoice from Person C stating that they were the ones that actually executed the task. Can that be used against person C for a whole different law suite? (EC 1119)

Can one act on information obtained through mediation such as a new defendant for another lawsuit?

Thanks for any feedback.
-Agent

The answer is negative and lies within the statute; to-wit:

California Evidence Code Section 1119

(a) "No evidence of anything said or any admission for the purpose of, or pursuant to mediation or a mediation consultation is admissible or subject to discovery and disclosure of the evidence shall not be compelled in any ARBITRATION, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."
(Emphasis added)

 

[quincy]

The answer is negative and lies within the statute; to-wit:

California Evidence Code Section 1119

(a) "No evidence of anything said or any admission for the purpose of, or pursuant to mediation or a mediation consultation is admissible or subject to discovery and disclosure of the evidence shall not be compelled in any ARBITRATION, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."
(Emphasis added)

An invoice created in the ordinary course of business can be used in a subsequent legal action, however. It would not have been for the sole purpose of mediation even if introduced as evidence in mediation. It is therefore subject to a discovery request.

California Evidence Code section 1119 applies to (to quote from the paper I linked to) "communications and writings made for the purpose of, and in the course of, or pursuant to a mediation or mediation consultation."