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Mediations and Confidentiality Rules

Mediation gives the parties to a dispute, either during an ongoing lawsuit or in an effort to avoid one, a chance to present their cases to a neutral third party trained in dispute resolution. In order to promote candor during the mediation process, anything that is said during mediation is considered confidential under state law. California requires the parties to a mediation to follow specific procedures to ensure that any written agreement resulting from mediation is admissible in court. This may be necessary in order to have the parties’ agreement entered as a judgment or to have it be enforceable as a contract.

Confidentiality of Mediations Under California Law

Under the California Evidence Code, statements made during mediation, whether oral or written, are not admissible in any noncriminal judicial, administrative, or arbitration proceeding. Any and all communications between the parties involved in mediation or between them and the mediator must remain confidential.

State law makes an exception for written settlement agreements prepared during or at the end of mediation, provided that all parties consent in writing to disclosure of the document. If the document meets all of these requirements, a court may rely on it to enter a judgment in a civil proceeding. Otherwise, the document is not admissible as evidence.

Confidentiality of Mediations Under Federal Law

The Alternative Dispute Resolution Act (ADRA) of 1998 authorizes the federal courts to establish local rules authorizing alternative dispute resolution procedures such as mediation. Section 4(d) of the ADRA directs each district court to create its own rules regarding confidentiality in mediations and other procedures unless the federal judiciary adopts a broader set of confidentiality rules. It does not appear that a set of rules meeting this description exists yet.

Mediation Confidentiality in Federal Court

Rule 501 of the Federal Rules of Evidence states that in the absence of direct guidance from federal common law, the U.S. Constitution, the U.S. Code, or a rule established by the federal judiciary, state law governs questions of privilege and confidentiality in civil cases. Questions of the confidentiality of mediation proceedings in federal lawsuits brought in California are therefore governed by the provisions of the California Evidence Code mentioned beforehand. If caselaw from the Ninth Circuit can provide any sort of general rule, it is that written agreements documenting any and all important matters from a mediation within the parameters set by state laws are very useful.

In a 2016 ruling, the Ninth Circuit held that emails between the parties to a lawsuit and the mediator they had retained were inadmissible under California law. The mediator was not able to help the parties reach an agreement during their initial mediation session. He later sent an email to both parties with a new proposed settlement which they accepted. After one of the parties refused to follow the agreement, the other tried to enforce it in court. The district court ruled that the emails failed to meet California’s requirements for the form of admissible mediated settlement agreements. The Ninth Circuit, however, held that federal common law applies and not state law.

Salar Atrizadeh, Esq. has advocated for clients in the courtrooms and conference rooms for more than ten years. Please contact us online or by calling our law firm to schedule a confidential consultation to discuss your rights and options.