California Confidential What Happens in Mediation May Not Stay in Mediation
| Publication year | 2019 |
| Author | By Ana M. Sambold |
By Ana M. Sambold
Ana M. Sambold
Effective January 1, 2019, California Senate Bill 954 requires attorneys to inform their clients of all confidentiality restrictions related to mediation and to obtain a signed acknowledgment stating that the client understands them. The new law is aimed at helping clients to be aware of California mediation confidentiality rules and allowing them to make a better-informed decision before agreeing to mediation. Consequently, it is important for attorneys representing clients in California mediations to become familiar with mediation confidentiality rules and the scope and impact of confidentiality on admissibility, enforceability and attorney malpractice.
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For more than two decades, California law has made mediation communications and writings confidential and has precluded the use, disclosure, and admissibility of a mediation communication or writings in a subsequent noncriminal case. Evidence Code sections 703.5 and 1115-1128 provide the evidentiary protections for mediation communication and govern mediation confidentiality. The key statute is section 1119, which bars disclosing (a) "anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation," (b) any writing, "prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation," and (c) "all communications, negotiations, or settlement discussions by and between participants in the course of mediation or a mediation consultation ...."
Contrary to popular belief, mediation confidentiality in California is not absolute. Several exceptions allow admissibility and discoverability of mediation communications. The lack of clarity may be due to the fact that these exceptions are not listed in one place but are in different sections of the Evidence Code and other sources:
Criminal proceedings. This is probably the most important exception. The protections to mediation communications provided by section 1119 apply only to "arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given." (Evid. Code, § 1119, subds. (a)-(b)).
Preexisting materials. Section 1120 creates an express exception to mediation confidentiality for preexisting materials. Evidence admissible or subject to discovery before the mediation does not become inadmissible or protected from disclosure solely because it was introduced or used in a mediation or mediation consultation. The Supreme Court has stated: "a party cannot secure protection for a writing—including a photograph, a witness statement, or an analysis of a test sample—that was not 'prepared for the purpose of, in the course of, or pursuant to, a mediation' ... simply by using or introducing it in a mediation or even including it as a part of a writing—such as a brief or a declaration or a consultant's report—that was 'prepared for the purpose of, in the course of, or pursuant to, a mediation.'" (Rojas v. Superior Court (2004) 33 Cal.4th 407, 417.)...
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