Today, in Cassel v. Superior Court, the California Supreme Court reaffirmed and strengthened the confidentiality of all things spoken or written in connection with mediation proceedings. This confidentiality means that all things said and done during and in preparation for mediation may not be discovered or admitted in any noncriminal proceeding, including civil trials, administrative proceedings or arbitrations. (Cassel v. Superior Court (January 13, 2011 S178914).) As the Supreme Court wrote, candor is "necessary to a successful mediation." It encourages the parties to be honest and open with each other in the interest of resolving their disputes without worrying that anything they say or do during or in preparation for mediation will result in prejudicial use of the information by the other party.
For instance, in one of my mediations, "John" and "Sam" were involved in a dispute that was destroying their long-standing personal and business relationship. After an intense and emotionally demanding day-long mediation, where John was able to candidly tell Sam how the dispute was affecting him and Sam was able to honestly tell John why he took certain actions, the final and crucial factor that made settlement possible was a simple apology.
"I'm sorry," said Sam. And the case settled.
An apology is impossible if it can be used later to imply guilt and responsibility. But full disclosure by the parties culminating in an apology during mediation can settle a dispute as well as, like it did here, reaffirm a business association and reconcile a personal relationship. Cassel v. Superior Court is one of the long line of cases in California that makes successful resolution of disputes and preservation of relationships possible.
Great post!
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