Evidence Code Section 1121 was not yet in effect when the settlement conference in this case took place before Judge Smith. Evidence Code Section 1121 simply made the prohibition more specific. In enacting Section 1121, the Legislature made a conscious decision, so far as mediation is concerned, that the importance of maintaining trust in the neutrality of mediators and guarding against their imposing their views on parties outweighed the possibility that a party's immunity from reports about its conduct in mediation might offend a court's interest in having a settlement agreed to. The CDRC urges this Court to take whatever care is necessary in crafting its opinion so as to enforce the policy balance that has been struck. In addition to sowing the seeds for disputes like that posed by the present case, appointments to serve both as a discovery referee and simultaneously as mediator also create ethical conflicts for neutrals.
Mediators commonly meet separately with each of the parties to a dispute.
When that happens, a party may make a statement in confidence that is not to be disclosed to an opposing side. The mediator is obligated to respect this confidence. However, based on past experience, the mediation community expects that the success rate in these will not match that in the two voluntary programs.