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California Mediation Confidentiality Law

Evidence Code section 1119 states:

"Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

Section 1121 provides: "Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless the parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118."

Under section 1118, oral agreements between mediating parties are enforceable so long as they are transcribed or tape recorded. (§ 1118.)

Evidence which is otherwise admissible or subject to discovery outside of mediation proceedings does not become inadmissible or protected from disclosure simply because it was used during the mediation process.

(§ 1120, subd. (a).) A communication or writing made or prepared as part of mediation proceedings may become admissible or discoverable if all parties agree, or if they were made by or on behalf of fewer than all the participants, those participants agree to the release, and the material does not disclose anything said or done or any admission made in the course of mediation. (§ 1122, subds. (a)(1), (2).)

Any writings or communications covered by these provisions remain privileged after the mediation ends. (§ 1126.) Any reference to a mediation during any subsequent trial is grounds for a new trial. (§ 1128.) These provisions do not apply to certain Family Law proceedings or to settlement conferences. (§ 1117, subds. (b)(1), (2).)

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