Family LawMediation Privilege

March 15, 2021

Deciding whether or not to mediate a divorce can be a pivotal decision. Mediation, if successful, can reduce costs and acrimony. It also may be somewhat of a healing process, enabling parties to better move on with their new, single lives. One major consideration in deciding on mediation is the mediation privilege, i.e, confidentiality.

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the California Evidence Code. The California Supreme Court has affirmed the absolute importance of confidentiality in the mediation process: “In order to encourage the candor necessary to a successful mediation, the Legislature has broadly provided for the confidentiality of things spoken or written in connection with a mediation proceeding. . . Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected.” (Cassel v. Superior Court (2011) 51 Cal 4th 113, 117-118 [holding that an attorney’s mediation-related discussions with a client were confidential and, therefore, were neither discoverable nor admissible for purposes of proving claim of legal malpractice because the mediation privilege is paramount].)

What this means is that no information about or related to a mediation is admissible as evidence in any court proceeding, for any reason, except with a few specific exceptions. For example, the required financial disclosures are expressly not covered by the mediation privilege, even if prepared or exchanged in mediation. (California Evidence Code Section 1120(b)(4).) Also, a signed agreement may be expressly made as a limited waiver to the mediation privilege if all parties involved consent to such limited waiver. (California Evidence Code Section 1123.) As a practical matter, this all means that your spouse could make material misrepresentations to you during mediation, or provide falsified documents, and if you rely on that information to reach settlement, you would have no remedy if you later wished to set aside the settlement. This also means that if your attorney is negligent in relation to mediation, you would have no legal recourse. For these reasons, mediation is not “one size fits all,” and you should consult with counsel before entering mediation.
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