CONFIDENTIALITY

Mediation:

California provides strong confidentiality protections for mediation.  No evidence of anything said, any writing, or any admission made for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation is admissible of subject to discovery in other legal proceedings, and disclosure of such evidence cannot be compelled except in a criminal proceeding or in a federal civil or administrative matter. (Cal. Evid. Code §§ 1115-1127.)

The statutory protection promotes "a candid and informal exchange regarding events in the past….This frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes."  Cassel v. Superior Court, 51 Cal.4th 113, 123 (2011).

This protection begins with the first call to the mediation office, and ends with any settlement agreements that fully or partially resolve the dispute.  However, it does not prevent the use of evidence that was obtained by a party prior to mediation just because it was used during the mediation.  In other words, mediation cannot be used to "shield" otherwise admissible evidence.  See Rojas v. Superior Court, 33 Cal.4th 407 (2007).

To protect the parties' confidentiality and the neutrality of the mediator, the statute also provides that mediators cannot testify in later proceedings unless both parties and the mediator agree.  Cal. Evid. Code § 1122; see also Marriage of Kieturakis, 138 Cal.App.4th 56 (2006); Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003).

 

Consulting:

The statutory confidentiality protections do not apply to consulting, but we can craft confidentiality or non-disclosure agreements to meet an organization's need for confidentiality where appropriate.