The Mediation Privilege in Family Law: What Does it Mean and Why Does it Matter?

Many parties choose to have their divorce cases mediated by a professional mediator. This can have many valuable benefits. It can be cheaper, less stressful, and much quicker than your typical adversarial divorce. All other things being equal, working together is preferred to working against one another.

Any party who chooses to use mediation should be aware of the mediation privilege. The mediation privilege makes it impossible (absent certain limited exceptions) for one party to compel the production of documents or testimony of the other party or the mediator as long as that other party and the mediator invoke the mediation privilege. If one party is trying to set aside a judgment because of false or fraudulent statements made by the other party, the mediation privilege can be a significant impediment to that goal.

However, it must be noted, that there are certain things that cannot be hid under the mediation privilege. In Lappe v. Superior Court, Wife claimed that Husband made misrepresentations about the value of his business during the mediation process. Wife filed a set aside motion and propounded discovery on Husband, demanding that he turn over the financial disclosures he produced in mediation. Not surprisingly, Husband invoked the mediation privilege and refused to turn his financial disclosures over.

The trial judge (a well-known and very accomplished family law specialist himself) sided with Husband and refused to force him to produce the requested documents on the grounds they were protected by the mediation privilege. Although not referenced in the opinion, it is likely that this was a death knell to Wife’s case. How could Wife prove that Husband’s disclosures were inadequate if the very disclosures she claims are inadequate could not be presented to the court?

Wife immediately filed an emergency writ petition with the Court of Appeals. The Court of Appeals reversed holding that Husband did have to turn over his disclosures because of two reasons: 1) Because disclosures are mandated by statute, they couldn’t be subjected to the mediation privilege and 2) the financial disclosures are something that would have existed anyway and were therefore independently discoverable (in other words, one simply can’t introduce a valuable document in mediation and then claim that document is 100% off limits).

Another important thing to remember about mediation is that parties are “entitled to adopt…more summary procedures for financial disclosure.” Accordingly, “technical compliance with disclosure rules designed for adversarial litigation” is not required. That is not to say, that fiduciary duties get thrown out the window in mediation, but the parties are not required to use the sometimes cumbersome judicial council forms that are otherwise necessary in adversarial litigation.

Please contact us if you are considering divorce from your spouse, a legal separation, or have questions regarding mediation and the mediation privilege. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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