Mediation vs. the Priesthood: A Layperson's Guide to Confidentiality in California Conflict Resolution
I met Zarinah Agnew – social change maven, cooperative convener, and transformative justice advocate extraordinaire – in 2021. They were leading the Haight St. Commons virtual mixer, connecting people curious about communal living in San Francisco with the housing cooperatives they might one day live in. I was a nervous college senior, Bay Area job offer in hand, joining the call from my college co-op in St. Louis.
Three years later, I have lived at two San Francisco community houses, including a new one I started with a few other attendees of that virtual mixer. And since November 2023, I have worked closely with Zarinah and others on facilitating collaboration between co-ops, managing our cooperatively-run library and coworking space, and transitioning this post-incarceration sanctuary to community ownership.
All that time and all those projects, and I have never once known Zarinah to pray, reference scripture, or betray sympathies with any type of religious inclination.
So it was surprising when one fine Wednesday at a meeting of the Haight St. Commons, Zarinah casually announced, “I’m thinking about becoming a priest.”
It turns out what they really wanted was clergy-penitent privilege, also known as priest-penitent privilege, which protects certain types of religious officers from the obligation to testify in court about potential criminal activity, provided they learned about it while performing their religious duties.
Zarinah’s current work in transformative justice supports formerly incarcerated people, survivors or violence, and those who have participated or been accused of participating in violence, both through Emotional Solidarities’ peer-to-peer support groups and the Alternative Justices Project’s educational resources. They have long hoped to provide direct support resolving active conflicts without court involvement, including those conflicts that rise to a criminal level.
But without the protection of some kind of privilege – be it attorney-client, psychotherapist-patient, or clergy-penitent privilege – Zarinah feared that they could be compelled to testify about what they had learned in court, thus preventing them from creating a trust with their clients. A lawyer had advised them not to even try.
Listening to Zarinah relate this roadblock, I found my brow wrinkling. As a case developer at SEEDS Community Resolution Center, a volunteer-run mediation practice, I regularly assure clients that anything they share with me will remain confidential within our organization. How could we at SEEDS, a mostly non-professional team, guarantee confidentiality?
I asked my SEEDS supervisor and mediation mentor Robin Pomerenke, who pointed me to the California Evidence Code for an explanation.
Several statues, case texts, and web articles (okay, mostly web articles) later, I have gained a strong understanding of both mediation privilege and clergy-penitent privilege. I’m no lawyer, but I can confidently say that the one Zarinah consulted should hit the books – mediation confidentiality is incredibly well-protected in California.
Broad, permissive privileges, reaffirmed again and again by court cases, follow from the California legislature and courts’ admirable goal of encouraging candid and informal communication in the search for mutual resolution, which as Rojas v. Superior Court (2004) puts it, can be “achieved only if the participants know that what is said in the mediation will not be used to their detriment.”
Below, I compare and contrast mediation privilege with clergy-penitent privilege. I hope this post makes it sufficiently clear that no transformative justice practitioner in California need find a church (unless they feel so called!).
What is the purpose of the privilege?
Mediation privilege. Litigation can be expensive, disempowering, and destructive to relationships. Mediation can help participants reach a mutually satisfying resolution while providing them with greater personal autonomy and control over the process. Mediation privilege exists to facilitate this resolution, creating space for participants to empathize, apologize, and express themselves without fearing that what they say will be used against them in court.
Clergy-penitent privilege. In 1980, the Warren Court observed that “the priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”
The clergy-penitent privilege is designed to protect the confidentiality of communications between individuals and their religious advisors, fostering open communication and the free exercise of religion. It allows people to seek spiritual guidance, counseling, and confession without fear that their statements will be disclosed in legal proceedings.
Who qualifies?
Mediation privilege. The criteria for a process to be protected under mediation privilege are intentionally broad. It covers any “process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” (Cal. Ev. Code § 1115(a).) The Honorable Judge H. Warren Knight, wrote that “there are simply no procedural strictures imposed on mediation other than those the parties wish to adopt.”
Robin Pomerenke, the Case Supervisor at SEEDS Community Resolution Center, recommends having mediators and participants sign a confidentiality agreement. This best practice ensures understanding, documents communication, and protects all parties involved.
Pomerenke also highlighted the abundance of resources available for mediators, including 40-hour trainings offered by SEEDS and Community Boards, practice clinics through SEEDS, and various written materials. They cautioned that while mediation privilege law is broad in its protections, not every approach leads to effective mediations. Training, mentorship, and continued education are crucial for creating strong practitioners and successful conflict resolution.
Clergy-penitent privilege. To claim clergy-penitent privilege, it must be established that (1) the organization is a legitimate religious organization, (2) the clergy member is recognized by the organization, and (3) the clergy member is authorized and accustomed to receiving penitential communication and bound by the tenets of their religious practice to keep such communications secret. I wasn’t able to find any cases in California in which Universal Unitarians, Pastafarians, Satanists, or any other new age or satirical spiritual or religious organization attempt to assert clergy-penitent privilege, so I can’t say how broadly California courts are willing to interpret this type of privilege.
I was able to find several California cases in which the court denied clergy-penitent privilege because the clergy member did not hear the communication in the course of their religious duties. One such case was People v. Govea, which concerned a Catholic priest, probably the most qualifying kind of priest for confidential communications in my non-legal opinion. So it’s fair to say that simply being a clergy member is not enough to claim the privilege – if someone shares knowledge of criminal activity with a Catholic priest outside of confession, the priest can still be compelled to testify about it.
Each religious organization has its own process for recognizing clergy members, which is also a factor to consider. I didn’t dive deep into this, but based on my little research, it often requires more school than I expected. The Church of the Flying Spaghetti sells an ordination certificate on their website for $59. I doubt it would get very far in court, but it does come with a resin wallet card and two car decals. Nice!
What does it cover? What are the exceptions?
Mediation privilege. Mediation privilege protects all communications, negotiations, and settlements made during the mediation process, including those leading up to and following the mediation itself. Cassel v. Superior Court (2011) held that California’s mediation privilege applies to all forms of mediation, including for criminal cases.
The constitutional rights exception. In Rinaker v. Superior Court (1998), the California Court of Appeal recognized a limited exception to mediation privilege on the grounds of constitutional rights. It held that a criminal defendant’s Sixth Amendment right to cross-examine a witness on inconsistent statements made during mediation superseded the confidentiality of the process. The Court established a balancing test to determine whether the need for disclosure outweighed mediation privilege, factoring in the importance of the evidence, the availability of other sources for the evidence, and the impact of disclosure on both the defendant and the mediation process. However, the more recent Cassel v. Superior Court contradicts that analysis. Cassel represents an evolving understanding of the law, bolstering mediation privilege and calling the future viability of the constitutional rights exception into question.
Considerations for mandated reporters. If a mandated reporter learns of abuse or neglect of children, elders, or people with disabilities, they are obligated to report it to the state. Unlike social workers and school employees, mediators are not specifically listed as mandated reporters. However, many mediators hold multiple roles, and a teacher or medical professional who acts as a mediator is still a mandated reporter. The law is unclear about whether mediation privilege or mandated reporting requirements take precedence.
Robin Pomerenke, the Case Supervisor at SEEDS Community Resolution Center, advises mediators who are mandated reporters to inform participants of their reporting obligations before starting the mediation. Here is an example script for a mediator who is also a mandated reporter.
Before we begin the mediation, I want to inform you that due to my other obligations, I am considered a mandated reporter under California law. This means that if, during the course of this mediation, I learn of any suspected abuse or neglect of children, elders, or dependent adults, I am required by law to report it to the appropriate authorities.
If you have any concerns about this, please let me know, and we can discuss them before proceeding with the mediation. If you choose to pursue mediation with a mediator who is not a mandated reporter, I will have no issue with you ending this session to do so. Do you have any questions about my role as a mandated reporter or how it may impact the mediation process?
Some straightforward exceptions to mediation privilege include
The express waiver, in which all participants waive their right to confidentiality,
Information about written settlement agreements produced during the mediation for the purpose enforcing those agreements, and
Evidence of mediator misconduct.
All in all, California courts have been reluctant to find exceptions to the mediation privilege, weighting the protection of the mediation confidentiality heavily in the task of balancing competing interests and rights.
Clergy-penitent privilege. The clergy-penitent privilege covers penitential communications or communications made in confidence to a clergy member who is authorized or accustomed to hearing such communications and is bound to their secrecy according to the tenets of their organization’s discipline or practice.
The law specifies that the communications cannot be made in the presence of a third person, at least so far as the penitent is aware. However, if the clergy member were facilitating conflict resolution, the communication would likely be protected under mediation confidentiality anyway.
Another exception is the waiver of the privilege. Both the clergy member and the penitent hold the privilege, and it is not settled whether the privilege can be waived unilaterally or must be waived jointly by the two parties.
An additional wrinkle to consider is that clergy members are mandated reporters, meaning that they are obligated to report neglect and abuse of children, elders, and people with disabilities. Penal Code section 11166(d)(1) actually carves out an exception to mandated reporting requirements for knowledge gained from protected communication. Still, if a transformative justice practitioner seeks to become a clergy, they should consider whether it is worth the obligation to report neglect and abuse they learn about during unprotected communication.
Conclusion
California's robust mediation privilege framework does far more than just protect conversations. It enables the creation of safe spaces for open dialogue, accountability, and reconciliation. By shielding mediators from being compelled to testify, this privilege allows transformative justice practitioners like Zarinah to focus on what really matters: fostering relationships built on trust and autonomy to address conflict on the participants' own terms. Hiding in plain sight, this framework safeguards the possibility of a more just, empathetic, and restorative approach to conflict resolution.
Further Reading
Church of the Flying Spaghetti Monster Ordinations
Clergy-FAQs-California.pdf (victimrights.org)
Clergy-Penitent Privilege - Bushore Church Real Estate (bushoreinc.com)
The Clergy-Penitent Privilege—In General | Church Law & Tax (churchlawandtax.com)