Eisendrath

By petition for writ of mandate or prohibition, John Eisendrath seeks relief from orders of the trial court regarding his mediation confidentiality rights under Evidence Code sections 703.5 and 1115 et seq.

After Eisendrath filed a motion to correct a spousal support agreement reached through mediation, real party in interest Kathryn Pratt Rogers sought to depose the mediator. Eisendrath requested a protective order intended to bar discovery and evidence regarding mediation communications, with the exception of certain conversations between himself and Rogers that formed the basis of his motion to correct the spousal support agreement. The trial court found that Eisendrath had impliedly waived his confidentiality rights, denied the protective order, and decided to hold an in camera hearing on the mediator’s potential testimony to determine whether it should be admitted.

We conclude that the trial court erred on these matters. However, we also conclude that unless Eisendrath and Rogers execute suitable express waivers, any protective order must also bar admission of all confidential conversations between Eisendrath and Rogers that may be cited in Eisendrath’s. motion to…