Both mediators and participants should understand the possibility that mediation communications and writings may be discoverable in certain situations. Two California court decisions that protected the absolute privilege, despite creating arguably unfair results, have caused much consternation.
California’s statutory scheme of mediation confidentiality is very broad. Essentially, the “Las Vegas Rule” applies: “What happens in mediation, stays in mediation.”
The California Law Revision Commission formally began its study of how much to weaken our current mediation confidentiality protections.