MODEL MEDIATION CONFIDENTIALITY PROVISIONS FOR STIPULATIONS AND CMO’S IN COMPLEX CONSTRUCTION DEFECT LITIGATION
The following language is suggested for cases in which the court is appointing a special master and the parties have voluntarily agreed to employ another neutral to serve as the mediator.
Stipulation to Mediation and Selection of Mediator
The parties shall be responsible for choosing and retaining the services of the mediator (who shall be a person other than the Special Master) and shall promptly notify the court and the Special Master thereof.
Confidentiality Of Mediation Communications
All parties to this Stipulation hereby agree that, unless otherwise provided herein, all communications among the parties, their counsel, or consultants, during the course of and pursuant to the mediation process, and all “writings” as that term is used in Evidence Code Section 250 that are prepared for the purpose of mediation are protected from disclosure by, and to the extent of, the provisions of Evidence Code Sections 1115 through 1128, and 1152. Without limitation, any statements or responses to statements of claims or any other writings that are designated by the preparer as “preliminary” or “for settlement purposes only” or “for mediation only” shall be deemed to have been prepared for the purpose of mediation.
(a) 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.
(b) This chapter does not limit any of the following:
(1) The admissibility of an agreement to mediate a dispute.
(2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.
(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in the dispute.
In accordance therewith, no evidence obtained through discovery as opposed to mediation, whether or not obtained pursuant to any order of the Special Master or the Court, shall be protected from disclosure.
The parties are fully aware and understand the effects of Evidence Code Section 1121 which states as follows:
Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning the mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.
Notwithstanding the terms of said Section 1121, the parties have expressly agreed that the Special Master is not acting as a “mediator” within the meaning thereof and that the Special Master is authorized to provide reports, assessments, evaluations, recommendations and findings to the Court regarding the discovery process and other matters within his jurisdiction under this Order.