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Prepared for Mediation of Sex Abuse Cases (Web)

            In Doe v. The Superior Court of Los Angeles County, 2005 Cal. App. Lexis 1494 (September 22, 2005), the California Court of Appeals on remand from the California Supreme Court held that non-parties who attend or take part in a mediation are protected by mediation confidentiality statutes and their express written permission is required to release the documents.  The Court granted a motion to prevent the release of written summaries of the records of numerous priests accused of sexually molesting minors that were prepared for an ongoing mediation process.
            The Roman Catholic Bishop of Los Angeles is the principal defendant in over 500 lawsuits (“Clergy Case I”) based on child molestation charges arising from the acts of various priests.  In order to protect privileges but advance settlement negotiations, the Church offered to prepare for mediation and settlement purposes, written summaries or “proffers” of the records of more than 100 priests that had been identified by the Clergy Case I plaintiffs to allow a determination of whether the Church was on notice of the molesters’ propensities.  The Church had planned to disclose the written summaries from the start despite objections from some of the accused priests.
            When disclosure of the written summaries appeared imminent, 26 of the priests brought this motion for a protective order to halt the planned release.  The trial court denied their motion, and the Court of Appeals summarily denied the petition for review.  The California Supreme Court remanded the matter back to the Court of Appeals with instructions to “show cause why the petition should not be granted and enjoin the Archdiocese from disclosing” the written summaries.
            Confidentiality is a key component to encourage the use of ADR.  The Court of Appeals stated that “confidentiality is considered essential for effective mediation because it allows for frank and candid discussions by the parties without fear that adverse information presented during a mediation will be used against them later.”  Section 1118 of the California Rules of Evidence states that all parties who conduct or participate in a mediation must expressly agree in writing to disclosure of a communication, writing, or document.  Section 1118(2) provides that material prepared by some participants can be disclosed by those participants so long as it does not disclose “anything said or done or any admission made in the course of the mediation,” which would require express permission from all participants.
The priests must show that they were participants to the mediation and that therefore the written summaries are protected material not subject to disclosure without their express written consent.
              In Travelers Casualty & Surety Co. v. Superior Court, the Court of Appeals held that “mediation participants included both parties and nonparties who attend or take part in a mediation.”  126 Cal.App.4th 1131, 1146 (2005).  If the priests were all non-parties whose only role was to prevent the disclosure of their files, it would be difficult to characterize them as mediation participants.  However, the record shows that one of the priests’ lawyers was present in court during mediation settlement discussions.  The Trial Court also considered the priests to be represented parties.  In order to achieve a settlement, the priests would have to be included in any agreement between the Church and Clergy Case I plaintiffs.  Likewise, the Church’s supplemental briefing on the issue conceded that the priests were mediation participants.
            The court held that the written summaries may not be disclosed as they reveal admissions made by the Church as well as its position on other issues regarding liability.  The Church accepted that it had knowledge of the activities of eight priests, therefore this would be an admission protected under the Rules of Evidence.  By not admitting knowledge in the remaining cases, the Church revealed that it would seek to show that it did not have knowledge in the remaining cases.  Those remaining cases may not be disclosed because they fall under the mediation discussion category.
            The Court of Appeals did not address the merits of any of the other privileges or reasons the priests might use to prevent the release of the information contained in the written summaries.

Prepared by Philip Sutter, CPR Intern