Relational and Informational Privileges and the Case of the Mysterious Mediation Privilege

59 Pages Posted: 6 May 2005


The most common rationales for evidentiary privileges are the instrumental and humanistic rationales. The instrumental rationale is that privileges are necessary to encourage communication in certain socially useful situations. The humanistic rationales include those based on the power theory (privileges are the reflection of the power of various professions and institutions to protect their interests by controlling their information and communications), a general right to privacy, and the right to personal autonomy (meaning freedom from control as opposed to freedom from scrutiny). This article describes the limitations of the instrumental and humanistic rationales for evidentiary privileges. These limitations stem in part from their treatment of privilege doctrine as a unitary concept.

The article then posits a new theory of evidentiary privileges, which divides the world of privilege into relational and informational privileges, each with its own rationale and characteristics. Relational privileges enhance certain fiduciary or "special" relationships. Relational privileges provide the strongest protection against disclosures in legal proceedings, as they are not subject to discretionary balancing by the trial court. Informational privileges recognize that some kinds of information have such value that, as a general rule, one who owns, or in some cases merely possesses, the information should be allowed to control its use as evidence in legal proceedings. However, this control is qualified; it is subject to the trial court's ability to weigh the value of the informational privilege against the need for the information as evidence in particular cases.

The distinction between relational and informational privileges will aid both the drafters and interpreters of evidentiary privileges by adding greater clarity, predictability, and integrity to their decisions to withhold certain evidence from the trier of fact because of its "privileged" status. The final section of the article focuses on the California mediation privilege, as interpreted by Rojas v. Superior Court 93 P.3d 260 (Cal. 2004), to illustrate the confusion that results from the unitary concept of privileges and to suggest how an approach based on relational and informational privileges could help in both the interpretation and redrafting of the mediation privilege.

Keywords: evidence, privilege, privacy, litigation, criminal, civil

JEL Classification: K41

Suggested Citation

Scallen, Eileen A., Relational and Informational Privileges and the Case of the Mysterious Mediation Privilege. William Mitchell Legal Studies Research Paper No. 17, Available at SSRN:

Eileen A. Scallen (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-0592 (Phone)

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