Communications and documents exchanged in a mediation in California generally are privileged and not admissible in court. (Cal. Evid. Code § 1119) There are some exceptions, which are discussed below.
The Evidence Code chapter on the mediation privilege does not apply to proceedings under the Family Conciliation Court Law or to court mediation of cases involving custody and visitation of children. Cases involving custody and visitation are governed by Chapter 11, Part 2, Division 8 of the Family Code, commencing with Family Code section 3160. This article does not discuss the rules governing the Family Conciliation Court or the mediation of custody and visitation. This article deals with all other mediations
What is a mediator? In California there is no licensing requirement to be a mediator and no educational requirement to be a mediator. Courts or other organizations may establish requirements to mediate in their systems, but otherwise there is no rule.
For purposes of the Evidence Code privilege, “mediator” is defined simply as “a neutral person who conducts a mediation. ‘Mediator’ includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation” (Cal. Evid. Code § 1115, subd. (b)) There is no other requirement for a person to conduct a mediation.
What then, is a mediation for purposes of the privilege? Evidence Code section 1115, subd. (a), provides that “‘Mediation’ means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” Thus, a meeting at the kitchen table with a neutral third person to hammer out a division of property and payment of support in a divorce can be a mediation, and the conversation and documents exchanged would be privileged and inadmissible.
That also means that settlement agreements entered by the parties in mediation are not admissible unless they meet certain specific requirements:
“A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:
“(a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.
“(b) The agreement 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.
“(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute. (Cal. Evid. Code, § 1123)”
If the settlement agreement does not meet these requirements, then it is not admissible, which means it cannot be enforced.
Oral agreements are not made inadmissible by the mediation privilege if any of the following conditions are met:
“(a) The agreement is in accordance with Section 1118.
“(b) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and all parties to the agreement expressly agree, in writing or orally in accordance with Section 1118, to disclosure of the agreement.
“(c) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.” (Cal. Evid. Code § 1124)
If these conditions are not met, the oral agreement is not admissible.
Evidence Code section 1118 provides a specific procedure for converting an oral agreement to a written agreement that is acceptable:
“An oral agreement ‘in accordance with Section 1118’ means an oral agreement that satisfies all of the following conditions:
(a) The oral agreement is recorded by a court reporter or reliable means of audio recording.
(b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited.
(c) The parties to the oral agreement expressly state on the record that the agreement is enforceable or binding, or words to that effect.
(d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded.” (Cal. Evid. Code § 1118)
Failure to comply with these requirements will make the oral agreement inadmissible.
The following evidence is not made inadmissible by the mediation privilege:
(a) evidence otherwise admissible or subject to discovery outside of a mediation,
(b) an agreement to mediate a dispute,
(c) 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,
(d) disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute, and
(e) declarations of disclosure required by Sections 2104 and 2105 of the Family Code, even if prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation. (Cal. Evid. Code § 1120)
The parties also may agree to allow evidence to be admitted if they follow the requirements of Evidence Code section 1122.