It appears to be settled California law that there are no exceptions to the confidentiality of mediation communications or to the statutory restrictions placed on the content of Mediator Reports.
However, in another case arising under California law, a U.S. District Court allowed an amendment to an Excess Carrier's Bad Faith Complaint to add a Bad Faith theory of failure in settlement which included reference to a party's Mediation Statement in the underlying case:
Arch complains of Traveler's failure to offer a settlement amount at anytime prior to the bench trial finding of liability, including in response to Plaintiff's $14 million evaluation made in a mediation statement.
Travelers Indemnity of Connecticut v. Arch Specialty Insurance Co., 2013 WL 322889 *2 (E.D. Cal. January 28, 2013).
Perhaps a communication made in a "mediation statement" is not a confidential "mediation communication" in California?
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