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.