"We Decline to Address": Resolving the Unanswered Questions Left by Rojas v. Superior Court to Encourage Mediation and Prevent the Improper Shielding of Evidence


In Rojas v. Superior Court the California Supreme Court demonstrated its clear intent to encourage mediation by providing absolute privilege to evidence and materials “prepared for the purpose of, in the course of, or pursuant to, a mediation.” However, the Court declined to address the important question of how to determine when materials are prepared for mediation. The Court’s failure to provide guidance on this issue may actually threaten its goal of encouraging mediation by allowing parties to use mediation as a forum for improperly shielding damaging evidence under the auspices of the mediation privilege. This Comment examines the dangers of the uncertainty left by the Rojas decision and proposes a solution that courts can adopt in order to ensure that the Court’s goal is realized, and that will allow parties to engage in mediation without fear that it will be used as a means to improperly shield evidence.

About the Author

Executive Editor, UCLA Law Review, Volume 54. J.D. Candidate, UCLA School of Law, 2007; B.A., Westmont College, 2002.

By uclalaw