Mediation is a form of alternative dispute resolution in which a neutral third party facilitates discussions between the opposing parties to help them reach a mutually agreeable settlement. One of the most important features of a meditation proceeding is that they are confidential. The purpose of the confidentiality requirement is to foster open and honest communications between the parties in order to craft a meaningful resolution to the dispute.

In circumstances where the mediation is unsuccessful and the dispute is subsequently handled through arbitration or a trial, or there is a dispute about the enforcement of the terms of the mediated settlement, the admissibility of the communications during mediation becomes an evidentiary problem. In the interest of maintaining the integrity of mediation proceedings and ensuring that the parties continue to realize their objectives through the mediation process, California enacted provisions in the Evidence Code (Code) to protect these communications. Section 1119 of the Code safeguards all information from discovery and admission into evidence. Specifically, the provision states that any statement or admission made in the course of mediation, and any written material prepared in the course of mediation, is a protected form of communication and is not discoverable or admissible as evidence in a trial.

A separate provision in the Code is also designed to protect the confidentiality of certain communications that arise in a mediation proceeding, but that provision is far more limited in scope. Section 1152 provides that information relating to the offer of something of value to another party that has sustained injury is not admissible. The prohibition includes “statements made in negotiation” of some compromise and therefore extends to the negotiation of terms for settlement in a mediation proceeding. The main objective of Section 1152 is to state that settlement negotiations are inadmissible as proof of liability. Section 1119 is far more expansive in its purpose; it provides that no communications that result from mediation are admissible regardless of the purpose for which they were made. Section 1119 also specifically notes that settlement discussions and negotiations in the course of mediation are confidential.

In order to circumvent these provisions and enforce a mediated settlement, a written agreement between the parties must stipulate that the settlement agreement is admissible into evidence and binding, and outside the scope of the confidentiality protection.

Contact Shane Coons at 949-333-0900 or visit his website at www.ShaneCoonsLaw.com to find out more about his practice.