One of the benefits of mediation is the confidentiality aspect of it. Mediation is a voluntary process which parties elect to take, in attempts to come to the table and work on amicable solutions without having to face the hostilities of having to go to court and litigate. Because the purpose is to make sure that parties are open to communication, the California Evidence Code (Sections 1115-1128) strives to make sure that the mediation process be kept confidential. Even the mention of mediated terms without an express agreement of all the parties to disclose can be excluded by a court of law, Facebook Inc. Pacific Northwest Software, Inc., 604 F.3d 1034, 1040-1042 (9th Cir. 2011). The mediator, being the neutral person, who facilitates the communication and mediation process is protected from being called a witness (See, evidence code, 1128).
Knowing this, I often get the question as to whether the settlement agreement itself is protected under the confidentiality rules and if so, can one enforce it? The answer lies in section 1123 of the evidence code, which reads as follows;
“Absent evidence of fraud, illegality, or duress the settlement agreement is confidential unless:
a) The agreement provides that it is admissible or subject to disclosure or words to that effect.
b) The agreement provides that it is binding or enforceable or words to that effect.
c) All parties to the agreement expressly agree in writing or orally (section 1118) to it’s disclosure.”
In layman’s terms, unless all parties to the mediation expressly agree (best in writing, but okay orally) that the agreement is enforceable or can be disclosed, the agreement itself is also confidential.
Another important point to mention here is that the confidentiality rules only apply to matters going forward to litigation, they do not stop anyone from discussing them to the public. Also, as to child custody mediations, please note that those evaluators are no longer called mediators, rather they are called child custody recommending counselors. The reason for this change, was because recommending counselors are allowed to report their findings to the court of what was discussed during their meetings with the parents and children.
Today mediation is a growing option to many who wish to avoid going to court. The process is very cost-effective and less time consuming and it can be applied to any issue, legal or not.
If you have a dispute, which you would like to resolve without having to go to court, call me at 510 470-1219 or email me, email@example.com to see how I can be of service.