Confidentiality in Mediation Settlements versus Confidentiality in Other Non-Mediation Settlements: What You Need to Know

Mediation is a process in which a neutral person or persons facilitate communications between the disputants to assist them in reaching a mutually acceptable agreement.

1). Mediation and confidentiality: The provisions of the law

For mediation to be effective, the parties need to feel free to discuss their feelings, thoughts, and possible settlement strategies.

California Evidence Code section 1119 provides parties with that security as it states that: “(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”

To put it simply, in mediation, almost everything said or done is protected by confidentiality. This safeguard applies to every participant in the mediation including the mediators.

2). The concept of confidentiality in mediation settlements compared to other non-mediation settlements

Many people are not aware that the above-described rules regarding confidentiality during a mediation DO NOT APPLY to other forms of dispute resolution.

In non-mediation settlements discussions, like an informal settlement meeting, settlement conference ordered by the judge or arbitration, Evidence Code section 1152(a) makes offers of settlement to prove liability inadmissible.

As stated in Evidence Code section 1152(a):

“(a) Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”

Therefore, it is important when deciding which form of dispute resolution to pursue to know that while negotiations, as well as the settlement agreements are confidential in a mediation, in other forms of dispute resolution only the settlement offers are confidential.

It is also important to be aware that there are several exceptions to the principle of confidentiality in mediation. In our humble opinion, these limitations are not detrimental to the high level of confidentially in mediation as they allow a better understanding of what can be done or not be done and why.

Written Settlement Agreement: If a partial or full agreement is reached during a mediation the Evidence Code Section 1123 encourages the parties to waive the confidentiality of this agreement by adding a provision that allows this consensus to be disclosed to the court. Otherwise, it would be virtually impossible to enforce any mediation settlement. As a result, to be disclosable, the written agreement must: (a) provides that it is admissible or subject to disclosure, or words to that effect - (b) provides that it is enforceable or binding or words to that effect. - (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. This makes total sense.

Evidence Otherwise Admissible: Evidence Code Section 1120 provides that pieces of evidence that would be usually admissible outside of a mediation settlement cannot become inadmissible - protected by confidentiality - just because they were shared during a mediation. This is logical. This provision of the Evidence Code bars the way to any party who would, intentionally, present embarrassing pieces of evidence against him/her during the course of the mediation in an attempt to use the principle of confidentiality during mediation, to exclude these detrimental pieces of evidence from the knowledge of the court in the future.

Express Agreement Waiving Confidentiality: Evidence Code Section 1122 states that communication or writing, that is made during mediation is disclosable to a judge if all persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclose of the communication, document, or writing. This exception simply echoes the provisions of the above-mentioned Evidence Code Section 1123.

To conclude, if you were wondering what form of alternative dispute resolution you should use to settle a family issue, the above synopsis will hopefully have given you a better idea of what fits best your needs and expectations and encourage you to consider mediation as one of them.

Call us to discuss how a confidential mediation could be the forum to allow everyone’s thoughts to be heard without fear of those communications being used against them later.