Often parties decide to attempt to mediate a resolution of their disputes. However, Mediation has consequences for the disputants.

Communications and writings made or prepared for the purposes of mediation are generally inadmissible in Court proceedings unless the participants to the mediation agree to disclosure of the communication, document or writing.

California law and public policy provide that all communications that take place in anticipation of and at mediation are confidential. Even after mediation ends, communications and writings protected by the statutes are to remain confidential.

The Legislature now requires attorneys, in writing, to explicitly disclose, and client to sign, a mandatory mediation disclosure form in order to further carry out the “strong legislative policy” underlying mediation confidentiality.

The disclosure form must be provided to the client as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation and the attorney must obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. If the attorney is retained after an individual agrees to participate in a mediation or mediation consultation, the attorney must comply with the printed disclosure and acknowledgment requirements as soon as reasonably possible after being retained. Failure of an attorney to comply with these disclosure requirements does not invalidate an agreement prepared in the course of, or pursuant to, a mediation. Confidentiality does not apply to communications, documents and writings related to an attorney’s compliance with the disclosure requirements and such communications, documents and writings may be used in an attorney disciplinary proceeding if the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.

In matters you and your opponents intend to mediate you should now receive the disclosure and acknowledgment form from your attorney.

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

• All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
• Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
• A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
• A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.