Litigation Topics: Mediation

Mediation Confidentiality – Courts are Serious About It - Even Lawyer Malpractice Can’t Crack the Code

The California Supreme Court is serious about protecting and enforcing mediation confidentiality.  To be sure, the Evidence Code provides explicit protection.  Sections 1115-1123 generally provide that anything said in the course of mediation is confidential and cannot be used as evidence in court.

Mediation Privilege Bars Evidence From Mediator Unless Parties Specifically Agree

Discussions that occur in mediation are confidential and cannot be introduced into evidence in later proceedings. And when it comes to the mediator, such testimony cannot be compelled “unless all parties to the mediation expressly agree . . . .” (Cal. Evidence Code section 703.5; see also, Evidence Code section 1119.)

Mediation Privilege Does Not Shield Attorney-Client Communications

When parties participate in mediation, all statements made in the course of the proceedings are privileged and cannot become evidence in a later case. This is the essence of Evidence Code section 1119 which sets forth the “mediation privilege.” The privilege covers oral statements and documents that are prepared for and utilized during the mediation, but does not cover normal evidence that might be discussed at the mediation.