The California Law Revision Commission has issued a tentative recommendation regarding mediation confidentiality, with a particular focus on the circumstance in which there is alleged misconduct during the course of a mediation (and evidence from the mediation is sought in a subsequent suit). [http://www.clrc.ca.gov/K402.html]
At 158 pages, the report is thorough, and in many places, thoughtful. The line drawing involved is difficult, and the tentative recommendation has drawn some energized response already. Without piling on, I will note that I am surprised that the proposal focuses only on attorney misconduct, and provides no parallel space for misconduct by mediators…
TOTH to Fred Hertz, Mediator and member of the editorial board of Dispute Resolution Magazine.