What Happens in Mediation Stays in Mediation; What Confidentiality Really Means

Can you keep a secret?  I can.  As a professional mediator it is my job to honor the confidentiality of the mediation process.  It is a responsibility I take very seriously.  Confidentiality is one of the major benefits of resolving a conflict through mediation.

In the state of California, mediation is by law a confidential process.  This means that what happens in mediation is not admissible or enforceable in a court of law, unless the parties request that an agreement be made admissible and enforceable.  If for some reason an agreement is not made or kept through mediation, the information gathered in mediation cannot be entered into evidence for a court or arbitration.  Mediators cannot testify regarding information learned during mediation.

Don’t want your personal business, especially conflict “dirty laundry”, out in the public for others to see?  In many situations, it is undesirable to resolve a conflict in a way that will leave a permanent public record.  The confidentiality provided by mediation prevents the details of a conflict, and the agreements reached, from becoming public.  When privacy matters, this is a big benefit of mediation over other forms of conflict resolution.

Are you worried that what you admit to in a settlement meeting could be held against you later? When parties would like to negotiate and consider options, one of the concerns that can arise is that if an agreement is not reached, during the process they may have provided information that could later be used in court or arbitrations.  Since mediation is confidential, negotiations can occur freely, without this concern.

When you have a conflict or dispute to resolve, mediation is worth considering for many reasons; including confidentiality.  Whether the issue arises from business, employment, family, real estate, or many areas of life, mediation is a low cost way to resolve conflicts.  In most cases, agreements are reached in a single session, helping people to move forward and past the conflict much faster than a court case would usually take.

California Evidence Code Sections 1115-1128 applies to mediation.  They pertain to confidentiality and admissibility of evidence.

CALIFORNIA EVIDENCE CODE SECTION 1119, Mediation Confidentiality, in summary provides.

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

Anything said or any writing prepared for the purpose of, in the course of, or pursuant to a mediation consultation is inadmissible and not subject to discovery in any arbitration, administrative adjudication, civil action, or other non-criminal proceeding.

A communication or writing which is confidential under Section 1119 can be admissible or subject to discovery if all persons who conduct or otherwise participate in the mediation expressly agree in writing (Section 1122).

Esther DeWitt, M.S., CAMS, is an industrial-organizational psychology practitioner specializing in conflict, emotional management and leadership issues.  She is a Credentialed Mediator and Certified Anger Management Specialist. As president of Conflict Navigation, her services include mediation, leadership and organizational consulting and training, anger management coaching, and curriculum and material development.

All rights reserved.  Please do not reproduce without appropriately citing Conflict Navigation.