Foxgate Homeowners' Ass'n v. Bramalea California, Inc.

The questions we address here are independent of the issues in the underlying lawsuit. Instead, we face the intersection between court-ordered mediation, the confidentiality of which is mandated by law (Evid. Code, §§ 703.5, 1115-1128), and the power of a court to control proceedings before it and other persons “in any manner connected with a judicial proceeding before it” (Code Civ. Proc., § 128, subd. (a)(5)), by imposing sanctions on a party or the party’s attorney for statements or conduct during mediation. (See Code Civ. Proc., §§ 128.5, 1209; Bus. & Prof. Code, § 6103.)

The Court of Appeal held that, notwithstanding section 1119, which governs confidentiality of communications during mediation, and section 1121, which limits the content of mediators’ reports, the mediator may report to the court a party’s failure to comply with an order of the mediator and to participate in good faith in the mediation process. In doing so, the mediator may reveal information necessary to place sanctionable conduct in context, including communications made during mediation. The court concluded, however, that in this case the report included more information than necessary. It…