CONFIDENTIALITY IN MEDIATION
A. Mediators can’t testify:
California Evidence Code § 703.5 (found in Division 6, “Witnesses”) declares that “no mediator is competent to testify in any subsequent civil proceeding.”
Exceptions: Mediator is competent to testify regarding statements or conduct that could
(a) give rise to civil or criminal contempt;
(b) constitute a crime;
(c) be the subject of an investigation by the State Bar or Commission on Judicial Performance
(d) in a mediation under Family Code §§ 3160 et seq. (mediation of visitation or custody matters, where the psychologist or social worker conducting the mediation may submit a recommendation to the court.) See Family Code §§ 1815 (qualifications of mediator under Family Code); 3177 (proceedings confidential); 3183 (recommendation with reasons to the court).
B. Mediators can’t report much:
California Evidence Code § 1121 (found in Division 9, “Evidence Affected or Excluded by Extrinsic Policies”) limits mediators reports to “whether an agreement was reached” when mandated by court rule or other law. Indeed, a court or other adjudicative body “may not consider any report, assessment, evaluation, recommendation, or finding of any kind by a mediator. (See Foxgate v. Bramalea, ___Cal.3rd ___, (2001).
Exception: If all parties to the mediation expressly agree in writing, or their oral agreement is recorded by a court reporter, tape recorder, or other reliable sound recording device, the mediator may report. to the court. (See Olam v. Congress Mortgage, 66 Fed. Supp. 2nd 1110, (1999).
C. Nobody can testify:
California Evidence Code § 1119 (“Evidence . . .Excluded by Extrinsic Policies”) says that “No evidence of anything said or any admission made” in a mediation process is admissible in evidence or subject to discovery. Disclosure “shall not be compelled” in any noncriminal proceeding. “All communications, negotiations, or settlement discussions. . .shall remain confidential.”
D. What’s not covered?
California Evidence Code § 1123 says that a written settlement agreement prepared as part of the mediation is admissible in evidence if signed by the settling parties and either (1) it provides that it is admissible or subject to disclosure; or, (2) it provides that it is binding or enforceable; or (3) all parties expressly agree in writing (or orally, subject to Evidence Code § 1118) to its disclosure; or (4) the agreement is used to show fraud, duress or illegality. California Evidence Code § 1120 says that “this chapter” (“Evidence . . .Excluded by Extrinsic Policies”) does not limit evidence of (1) an agreement to mediate; (2) 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; or (3) disclosing that the mediator has served as a mediator in a dispute.
E. Don’t try to force the mediator to testify.
Mediators can recover fees and costs. Evidence Code § 1127 protects mediators from having to appear in court or otherwise respond to subpoenas for documents. It authorizes the court to award the mediator reasonable attorneys fees and costs against the person seeking the testimony or discovery.
F. What do the courts say?
In rare circumstances courts may order mediators to testify, initially in camera. (See Rinaker v. Superior Court, 62 Cal App. 4th 155, (1998), (juvenile court proceeding); Olam v. Congress Mortgage 68 F. Supp. 2d 1110, (1999), (validity of settlement agreement with consent of parties).)
G. What do the professional associations say?
The standards of CDRC (the California Dispute Resolution Council) say that “A Mediator shall preserve and maintain the confidentiality of all mediation proceedings except where required by law to disclose information.” Within the mediation process, “A mediator shall not disclose information to the other participants when confidentiality is requested.”
ACR (The Association for Conflict Resolution), AAA (the American Arbitration Association), and the ABA (American Bar Association) jointly say that “The mediator shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or other public policy.”
