Is mediation confidential?
While the general rule in mediation is that it is confidential, there are some judicially-created and some legislator-created exceptions to this confidentiality. However, all of the exceptions are meant for the protection of the mediation process and to prevent attorneys from taking advantage of the process. So, for example, if you are involved in a lawsuit, any offers you make to settle the case in mediation are not admissible in court under general principles of evidence law. Other things that are said in mediation may not be protected.
A lawyer can draw up a mediation agreement which, when signed by both sides, prohibits disclosure of what was said in the mediation. Some mediators require the parties to sign a confidentiality agreement before they begin the mediation.
California is the guiding state when it comes to mediation. Under California’s original law, from the time you contact a mediator to ask about mediation until the mediation is over, everything said is confidential. This means that nothing written specifically for the mediation or said during the mediation is subject to discovery (being revealed) in any non-criminal proceeding. Furthermore, the mediator cannot be called to testify about what went on in the mediation in any later non-criminal proceeding. This means you can have complete confidence that what you tell the mediator in private will not be revealed.
Exceptions to the Mediation Confidentiality Rule
The following exceptions have been made to the mediation confidentiality rule:
- Mediators can testify in a civil proceeding as to statements or conduct of the parties that give rise to civil or criminal sanctions that may be constituted as a crime, that could be subject to investigation by the State Bar or Commission on Judicial Performance, or that could give rise to disqualification proceedings due to judicial bias. (Evidence Code Section 703.5 (a-d))
- The parties of the mediation report to the court any non-communicative conduct that was done in bad faith. (Evidence Code Section 1121)
- Failure to object to evidence brought in during a mediation proceeding will allow this evidence to be brought into court later. (Regents of University of California v. Sumner)
- Mental competence of a party may be reported to call into question a settlement that was reached during a mediation session. (Olam v. Congress Mortgage Company)
- If parties agree contractually to waive confidentiality, then confidentiality will be waived by the court and the information released. (Evidence Code Section 1122(a)(1))
These are just a few of the established exceptions to confidentiality.
If you are unsure as to whether something that happened in your mediation session should be revealed to the court, consult your attorney.