For the purpose of confidentiality, what is a mediation?
Evidence Code Section 1115 defines “mediation” in broad terms, allowing for flexibility in structuring the process and in the styles employed by different mediators. Because the process is intended to be voluntary the definition expressly excludes a mandatory settlement conference. Despite this exclusion we sometimes see court orders that send parties to mediation and refer to it as a mandatory settlement conference. Such orders can be viewed in two ways. They may be unenforceable as an attempt to mandate mediation, as the court held in Jeld-Wen Inc. v. Superior Court (2007) 146 Cal.App.4th 536. Alternatively, they may result in a loss of confidentiality by transforming the intended mediation into an MSC. In either case they are ill-advised. Counsel should be aware that in San Francisco the early settlement conferences administered by the Bar Association in conjunction with the Superior Court are also MSC’s. Parties are given the option of converting the conference into a mediation if
