Chapter 2Mediation

Section § 1115

Explanation

This section defines key terms related to mediation. 'Mediation' is when a neutral person helps disputing parties talk to each other to try and reach an agreement. A 'Mediator' is the neutral person helping in this process, and can include others appointed by the mediator to aid in communication or preparation. 'Mediation consultation' refers to any conversation between someone and a mediator that's about starting, resuming, or arranging for a mediation.

For purposes of this chapter:
(a)CA Evidence Code § 1115(a) “Mediation” means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.
(b)CA Evidence Code § 1115(b) “Mediator” means a neutral person who conducts a mediation. “Mediator” includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.
(c)CA Evidence Code § 1115(c) “Mediation consultation” means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.
mediation process neutral facilitator dispute resolution mediator role mediation consultation communication facilitation agreement negotiation disputants preparation for mediation initiating mediation reconvening mediation retaining mediator facilitated communication
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1116

Explanation

This law states that it doesn't change a court's power to involve individuals in dispute resolution like mediation and doesn't impact the enforceability of contracts that require mediation.

Additionally, it clarifies that it doesn't allow evidence to be used in court if it is already considered inadmissible under other laws.

(a)CA Evidence Code § 1116(a) Nothing in this chapter expands or limits a court’s authority to order participation in a dispute resolution proceeding. Nothing in this chapter authorizes or affects the enforceability of a contract clause in which parties agree to the use of mediation.
(b)CA Evidence Code § 1116(b) Nothing in this chapter makes admissible evidence that is inadmissible under Section 1152 or any other statute.
dispute resolution court authority mediation clauses contract enforceability inadmissible evidence Section 1152 evidence admissibility mediation agreements dispute mediation legal contracts court orders statutory limitations procedure authority evidence exclusion legal proceedings
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1117

Explanation

This law says that the rules in this chapter apply to mediations, which are meetings where a neutral person helps people settle disputes, as defined in another section. However, these rules do not apply to certain family law proceedings or settlement conferences under specific court rules. Specifically, this includes proceedings related to certain Family Code sections and settlement conferences outlined in the California Rules of Court.

(a)CA Evidence Code § 1117(a) Except as provided in subdivision (b), this chapter applies to a mediation as defined in Section 1115.
(b)CA Evidence Code § 1117(b) This chapter does not apply to either of the following:
(1)CA Evidence Code § 1117(b)(1) A proceeding under Part 1 (commencing with Section 1800) of Division 5 of the Family Code or Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.
(2)CA Evidence Code § 1117(b)(2) A settlement conference pursuant to Rule 3.1380 of the California Rules of Court.
mediation rules mediation exceptions family law proceedings settlement conference neutral mediation dispute resolution California Rules of Court Section 1800 Division 5 Family Code Chapter 11 Section 3160 conflict resolution subdivision exception Rule 3.1380 court proceedings
(Amended by Stats. 2007, Ch. 130, Sec. 84. Effective January 1, 2008.)

Section § 1118

Explanation

This law defines what is needed for an oral agreement to be considered valid in legal proceedings. First, the agreement must be recorded by a court reporter or through a reliable audio recording. Next, the terms have to be clearly stated in front of the involved parties and a mediator, with everyone agreeing to those terms. Additionally, everyone must say on record that they understand the agreement is binding. Finally, the recorded agreement must be written down and signed by all parties within 72 hours.

An oral agreement “in accordance with Section 1118” means an oral agreement that satisfies all of the following conditions:
(a)CA Evidence Code § 1118(a) The oral agreement is recorded by a court reporter or reliable means of audio recording.
(b)CA Evidence Code § 1118(b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited.
(c)CA Evidence Code § 1118(c) The parties to the oral agreement expressly state on the record that the agreement is enforceable or binding, or words to that effect.
(d)CA Evidence Code § 1118(d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded.
oral agreement recorded agreement court reporter audio recording mediator presence parties agreement binding agreement enforceable agreement terms recited agreement recording 72-hour signature legal proceedings agreement validity written agreement signature requirement
(Amended by Stats. 2010, Ch. 328, Sec. 64. (SB 1330) Effective January 1, 2011.)

Section § 1119

Explanation

This law states that anything said or written during mediation cannot be used as evidence in court or any legal proceedings. It ensures that all communications and documents related to mediation remain confidential and are not subject to discovery or disclosure in arbitration, civil cases, or other non-criminal proceedings.

Except as otherwise provided in this chapter:
(a)CA Evidence Code § 1119(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
(b)CA Evidence Code § 1119(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
(c)CA Evidence Code § 1119(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.
mediation confidentiality evidence in mediation mediation proceedings non-criminal proceedings mediation discussions admissions during mediation disclosure restriction mediation communication settlement discussions confidential negotiation arbitration evidence mediation documents compelled testimony discovery limitation administrative adjudication
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1120

Explanation

This law explains that if evidence is generally allowed in court or can be discovered outside of a mediation, its use in a mediation doesn't make it inadmissible or undiscoverable. Basically, mediation doesn't change the evidence rules.

Additionally, the law doesn't restrict a few specific things: when an agreement to mediate can be presented in court, agreements about default or extending deadlines in civil cases, telling someone that a mediator was involved in a dispute, and sharing specific family code declarations even if they were created for mediation purposes.

(a)CA Evidence Code § 1120(a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.
(b)CA Evidence Code § 1120(b) This chapter does not limit any of the following:
(1)CA Evidence Code § 1120(b)(1) The admissibility of an agreement to mediate a dispute.
(2)CA Evidence Code § 1120(b)(2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.
(3)CA Evidence Code § 1120(b)(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute.
(4)CA Evidence Code § 1120(b)(4) The admissibility of declarations of disclosure required by Sections 2104 and 2105 of the Family Code, even if prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation.
admissible evidence mediation discovery process agreement to mediate default agreements civil action deadlines mediator involvement Family Code declarations mediation consultation disclosure exceptions evidence rules mediation civil procedure extensions mediator participation legal agreements mediation mediation protective rules
(Amended by Stats. 2017, Ch. 60, Sec. 1. (SB 217) Effective January 1, 2018.)

Section § 1121

Explanation

This law states that a mediator or anyone else cannot provide a court, or similar decision-making body, with any reports, assessments, evaluations, or findings from a mediation session. The only exception is if there's a rule or law requiring a report that merely states whether an agreement was reached, or if all parties involved in the mediation agree in writing or as per specific legal requirements to allow it.

Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.
mediator confidentiality mediation reports court submission restrictions adjudicative body limitations mediation findings written agreement requirement Section 1118 agreement report exception mediation session confidentiality mediation assessment prohibition
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1122

Explanation

This law states that communications or writings made during a mediation are generally protected from being disclosed. However, there are exceptions: if everyone involved in the mediation agrees in writing or verbally to share the information, if the document was created by or for some participants and they agree to its disclosure, and it does not reveal anything said or done during mediation, or if it's about an attorney's compliance with certain requirements and might be used in a disciplinary case.

Also, if the neutral mediator consents to disclosure, this consent applies to all relevant persons involved in the mediation process.

(a)CA Evidence Code § 1122(a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if any of the following conditions are satisfied:
(1)CA Evidence Code § 1122(a)(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.
(2)CA Evidence Code § 1122(a)(2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.
(3)CA Evidence Code § 1122(a)(3) The communication, document, or writing is related to an attorney’s compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.
(b)CA Evidence Code § 1122(b) For purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in subdivision (b) of Section 1115.
mediation confidentiality communication disclosure mediation participation written agreement oral agreement attorney compliance attorney disciplinary proceedings neutral mediator consent Section 1118 Section 1129 mediation exception communication protection document disclosure mediation participants attorney requirements
(Amended by Stats. 2018, Ch. 350, Sec. 1. (SB 954) Effective January 1, 2019.)

Section § 1123

Explanation

This California law states that a written settlement agreement from mediation is not automatically protected from being shown in court or kept secret if specific conditions are met. To be admissible or disclosed, the agreement must be signed by all parties involved. It can be made admissible or disclosed if: (a) the agreement explicitly says it can be shown in court; (b) the agreement states it is legally enforceable or binding; (c) all parties agree in writing or verbally, as per another legal provision; or (d) the agreement is needed to prove fraud, coercion, or illegal actions related to the dispute.

A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:
(a)CA Evidence Code § 1123(a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.
(b)CA Evidence Code § 1123(b) The agreement provides that it is enforceable or binding or words to that effect.
(c)CA Evidence Code § 1123(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.
(d)CA Evidence Code § 1123(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.
mediation settlement agreement written agreement admissibility settlement disclosure agreement enforceability binding settlement fraud in mediation duress illegality in dispute party consent Section 1118 oral agreement disclosure enforceable agreement signed settlement document mediation confidentiality exceptions admissibility conditions
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1124

Explanation

An oral agreement made during or because of mediation can be used in court or disclosed if it meets certain conditions.

First, it must comply with Section 1118.

Second, all parties must clearly agree to share it, either in writing or as outlined in Section 1118.

Third, it can also be disclosed if it proves fraud, pressure, or illegal acts related to the dispute.

An oral agreement made in the course of, or pursuant to, a mediation is not made inadmissible, or protected from disclosure, by the provisions of this chapter if any of the following conditions are satisfied:
(a)CA Evidence Code § 1124(a) The agreement is in accordance with Section 1118.
(b)CA Evidence Code § 1124(b) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and all parties to the agreement expressly agree, in writing or orally in accordance with Section 1118, to disclosure of the agreement.
(c)CA Evidence Code § 1124(c) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.
oral agreement mediation agreement disclosure Section 1118 compliance fraud in mediation duress in mediation illegality in mediation consent to disclose evidence admissibility dispute resolution mediation legalities oral agreement conditions mediation exceptions mediation disclosure agreement
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1125

Explanation

This section of the California Evidence Code explains when a mediation is considered to be over for confidentiality reasons. A mediation ends when one of the following happens: the parties sign a written agreement that resolves the issue, they reach an oral agreement under certain rules, the mediator officially declares the mediation over in writing, one party declares it over, or there's a lack of communication between the parties and the mediator for 10 days. These conditions determine when the mediation ends, either fully or partially. Also, a party can stop a mediation at any time even if there’s no agreement.

(a)CA Evidence Code § 1125(a) For purposes of confidentiality under this chapter, a mediation ends when any one of the following conditions is satisfied:
(1)CA Evidence Code § 1125(a)(1) The parties execute a written settlement agreement that fully resolves the dispute.
(2)CA Evidence Code § 1125(a)(2) An oral agreement that fully resolves the dispute is reached in accordance with Section 1118.
(3)CA Evidence Code § 1125(a)(3) The mediator provides the mediation participants with a writing signed by the mediator that states that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121.
(4)CA Evidence Code § 1125(a)(4) A party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121. In a mediation involving more than two parties, the mediation may continue as to the remaining parties or be terminated in accordance with this section.
(5)CA Evidence Code § 1125(a)(5) For 10 calendar days, there is no communication between the mediator and any of the parties to the mediation relating to the dispute. The mediator and the parties may shorten or extend this time by agreement.
(b)CA Evidence Code § 1125(b) For purposes of confidentiality under this chapter, if a mediation partially resolves a dispute, mediation ends when either of the following conditions is satisfied:
(1)CA Evidence Code § 1125(b)(1) The parties execute a written settlement agreement that partially resolves the dispute.
(2)CA Evidence Code § 1125(b)(2) An oral agreement that partially resolves the dispute is reached in accordance with Section 1118.
(c)CA Evidence Code § 1125(c) This section does not preclude a party from ending a mediation without reaching an agreement. This section does not otherwise affect the extent to which a party may terminate a mediation.
mediation confidentiality written settlement agreement oral agreement mediator declaration termination of mediation communication lapse partial resolution ending mediation party declaration Section 1118 compliance Section 1121 compliance mediation continuation dispute resolution mediation participant ends mediation
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1126

Explanation

This law states that anything said, any admissions made, or any writings involved in mediation are confidential and cannot be used as evidence, even after the mediation has ended. This confidentiality remains intact before, during, and after mediation.

Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.
mediation confidentiality inadmissible statements protected disclosures mediation process confidential communications admissions in mediation post-mediation confidentiality confidentiality protection mediation writings evidence exclusion mediation privacy disclosure limitations mediation confidentiality law inadmissible in court confidentiality of communications
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1127

Explanation

If someone tries to force a mediator to testify or hand over documents and the court decides that this information isn't allowed to be shared under the rules, the court must make whoever wanted the testimony pay the mediator's legal fees and costs.

If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing, as defined in Section 250, and the court or other adjudicative body determines that the testimony or writing is inadmissible under this chapter, or protected from disclosure under this chapter, the court or adjudicative body making the determination shall award reasonable attorney’s fees and costs to the mediator against the person seeking the testimony or writing.
mediator testimony subpoena mediator inadmissible testimony mediator protection attorney's fees costs awarded mediator confidentiality compel mediator testimony protection writing disclosure legal costs adjudicative determination court ruling mediator's rights protected from disclosure
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1128

Explanation

If someone talks about what happened in a mediation session during a later trial, it's considered a mistake in the trial process, according to another legal rule.

If this reference happens in a different type of non-criminal case, it could lead to the decision being changed or a new hearing being granted if the mention of the mediation unfairly affected the rights of the person asking for a correction.

Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of Section 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.
mediation reference trial irregularity noncriminal proceedings vacate decision modify decision substantial rights requesting relief new hearing materially affected subsequent trial grounds for vacating Code of Civil Procedure Section 657 mediation confidentiality
(Added by Stats. 1997, Ch. 772, Sec. 3. Effective January 1, 1998.)

Section § 1129

Explanation

This law requires attorneys to inform their clients about the confidentiality of mediation sessions. Before a client agrees to participate, the attorney must provide a written disclosure explaining the rules of confidentiality and get the client to sign an acknowledgment saying they understand these rules.

If the attorney is hired after the client has already agreed to mediation, the attorney must fulfill these requirements as soon as possible. The disclosure must be in the client's language, printed clearly, and include signatures from both the client and the attorney.

The confidentiality rules mean that anything said or written during mediation cannot be used as evidence in court, and mediators cannot testify about the mediation. Even if the client later sues their attorney for malpractice, the communication during mediation remains confidential.

Missing these requirements does not invalidate any agreement made during the mediation.

(a)CA Evidence Code § 1129(a) Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.
(b)CA Evidence Code § 1129(b) An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in subdivision (a).
(c)CA Evidence Code § 1129(c) The printed disclosure required by subdivision (a) shall:
(1)CA Evidence Code § 1129(c)(1) Be printed in the preferred language of the client in at least 12-point font.
(2)CA Evidence Code § 1129(c)(2) Be printed on a single page that is not attached to any other document provided to the client.
(3)CA Evidence Code § 1129(c)(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.
(d)CA Evidence Code § 1129(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a):
Mediation Disclosure Notification and Acknowledgment
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.
I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
[Name of Client]  [Date signed]
[Name of Attorney]  [Date signed]
(e)CA Evidence Code § 1129(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.
mediation confidentiality client acknowledgment attorney obligations mediation disclosure confidential communications noncriminal proceedings mediator testimony malpractice protection client rights disclosure requirements confidentiality laws admissible evidence mediation process California Evidence Code client attorney communication
(Added by Stats. 2018, Ch. 350, Sec. 2. (SB 954) Effective January 1, 2019.)