Mediation confidentiality laws play a critical role in allowing mediation to remain a viable process for parties to discuss the issues involved in their dispute, exchange information, and potentially reach a settlement before trial. Without certain guarantees as to the confidential nature of such a meeting, no savvy party or attorney would agree to provide information that could later be turned against him at trial, and many valuable opportunities (as measured in time, cost, reputation, relationship, etc.) for resolution would be lost. However, some parties to mediated disputes either do not reach resolution, or later contest a mediated agreement in court. In these situations, what happens when the rules that govern mediation confidentiality are incompatible with the substantive law governing the case, to the point of being mutually exclusive? Is there a framework for judges to use in determining whether one set of laws should trump the other? Must the outcome always be at the expense or benefit of either substantive law or mediation confidentiality? In March of 2006, the California Court of Appeal faced this scenario in deciding In re Marriage of Kieturakis, a case in which mediation confidentiality law was in conflict with the state's substantive law regarding marital dissolution settlements. Parts II and III of this article will begin by considering California's mediation confidentiality law, the exceptions that have developed thereto, and the outcome of the Kieturakis case. Part IV will discuss the likely impact of the case on California law and the practice of mediation. Part V will examine how other jurisdictions and the Uniform Mediation Act (UMA) have approached similar conflicts between mediation confidentiality and substantive law. Finally, Part VI will question whether holdings such as Kieturakis increase mediator responsibility for ensuring the fairness of a settlement, as traditional safeguards against nequality may no longer apply to parties contesting a mediated settlement.
Annalisa L. H. Peterson,
When Mediation Confidentiality and Substantive Law Clash: An Inquiry into the Impact of In Re Marriage of Kieturakis on California's Confidentiality Law,
8 Pepp. Disp. Resol. L.J.
Available at: http://digitalcommons.pepperdine.edu/drlj/vol8/iss1/7