February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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California: What Happens In Mediation Stays (Confidential) In Mediation

An amendment to Section 1122 of the California Evidence Code on mediation confidentiality requires attorneys representing clients in connection with mediation to provide written disclosures to their clients about mediation confidentiality beginning January 1, 2019.

California law and public policy provide that all communications that take place in anticipation of and at mediation are confidential. “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” Even after mediation ends, communications and writings protected by the statutes are to remain confidential.

To further carry out the “strong legislative policy” underlying mediation confidentiality, SB 954 adds the following to the Evidence Code:

  • An attorney must provide the disclosures to clients before the client agrees to participate in mediation if the attorney represents the client at the time;

  • An attorney must provide the disclosures after being retained if the attorney is retained after the client agrees to participate in mediation;

  • The disclosure requirement does not apply in class or representative actions; and

  • The content and format of disclosures are detailed in the statute.

The client must sign the disclosure form. It is not clear if the disclosure requirement applies to cases removed to federal court.

The law does not otherwise change existing laws on mediation confidentiality or provide a specific remedy for failing to comply. The law states the failure to provide the required disclosures will not invalidate an agreement reached at mediation.

Jackson Lewis P.C. © 2023National Law Review, Volume VIII, Number 256

About this Author

Joel P. Kelly, Jackson Lewis, whistleblowing retaliation lawyer, trade secrets and confidentiality attorney

Joel P. Kelly is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. He is a veteran employment litigation and trial attorney, and provides counsel to employers from Alaska to Texas on a wide variety of workplace issues.

Mr. Kelly litigates disputes on behalf of employers in the areas of wrongful discharge and discipline, discrimination and harassment, whistle-blowing, retaliation, unfair trade practices, trade secrets and confidentiality, and related matters. He has expertise in complex class actions,...

Jessica Gregg, Jackson Lewis Law Firm, Los Angeles, Labor and Employment Law Attorney

Jessica C. Gregg is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.