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.

Mediation Law

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.

Case Studies: Exceptions to Mediation Confidentiality Rule

Case Study 1: Settlement Offers in Litigation

John and Sarah are involved in a personal injury lawsuit. During mediation, John offers to settle the case for $50,000, but Sarah rejects the offer. Later, at the trial, John’s attorney tries to introduce the settlement offer as evidence to demonstrate John’s willingness to resolve the matter.

However, the court upholds the mediation confidentiality rule, and the settlement offer is deemed inadmissible in court. This case highlights how settlement offers made during mediation are protected from disclosure in subsequent legal proceedings.

Case Study 2: Confidentiality Agreement

In a business dispute, Mark and Lisa agree to participate in mediation. Prior to the mediation session, their respective attorneys draft a mediation agreement that includes a confidentiality clause. Both Mark and Lisa sign the agreement, affirming their commitment to keeping the discussions confidential.

As a result, any information shared during the mediation, including offers, negotiations, and personal statements, cannot be disclosed outside the mediation process. This case illustrates the effectiveness of a confidentiality agreement in safeguarding the privacy of mediation proceedings.

Case Study 3: California’s Mediation Law

Mike and Emily, a divorcing couple in California, decide to pursue mediation to resolve their property division and child custody issues. They meet with a mediator who guides them through the process. In California, all communications, discussions, and documents generated during mediation enjoy absolute confidentiality.

Mike and Emily can freely express their concerns, explore possible solutions, and work towards a mutually beneficial agreement, knowing that their discussions will not be disclosed in any subsequent legal proceedings. This case showcases the strong confidentiality protections provided by California’s mediation law.

Case Study 4: Consultation With an Attorney

Amy participates in a workplace discrimination mediation. During the session, Amy’s employer makes derogatory comments about her race and gender. Uncertain about the appropriate course of action, Amy seeks advice from her attorney after the mediation.

Her attorney advises her to disclose the employer’s discriminatory remarks to the court, as they may constitute evidence of unlawful behavior. This case emphasizes the importance of consulting with an attorney to determine when information from a mediation session should be revealed in court.​

Getting Help

If you are unsure as to whether something that happened in your mediation session should be revealed to the court, consult your attorney.