California’s Mediation Code

The chapter defines mediation and who can conduct it, provides
requirements for enforceable settlements, and prohibits mediator
reporting and coercion. It expressly extends confidentiality and
other protections into later arbitrations, court actions and
administrative hearings.

Ron Kelly initiated and guided the formation of the new chapter.
Following below is the full text of the
legislation creating it (AB 939), along with the comments of the
California Law Revision Commission which sponsored the bill. The
Commission’s comments are generally deemed to be conclusive evidence
of the Legislature’s intent.

Conforming Revisions and
Repeals

Bus. & Prof. Code § 467.5
(amended). Communications during funded proceedings

Code Civ. Proc. § 1775.10 (amended).
Evidence Code provisions applicable to statements made in
mediation

Evid. Code § 1152.5 (repealed). Mediation
confidentiality

Evid. Code § 1152.6 (repealed). Mediator
declarations or findings

Gov’t Code § 66032 (amended). Procedures
applicable to land use mediations

Gov’t Code § 66033 (amended). Land use
mediator’s report

Ins. Code § 10089.80 (amended).
Disclosures and communications in earthquake insurance mediations

Ins. Code § 10089.82 (amended).
Noncompulsory participation in mediation

Lab. Code § 65 (amended). Powers and duties of
department

Welf. & Inst. Code § 350 (amended).
Conduct of proceedings

New Mediation Chapter

Evid. Code §§1115-1128 (added). Mediation

SEC. 3. Chapter 2 (commencing with Section 1115) is added to
Division 9 of the Evidence Code, to read:

Chapter 2. Mediation

§ 1115.
Definitions

1115. For purposes of this chapter:

(a) “Mediation” means a process in which a neutral person or
persons facilitate communication between the disputants to assist
them in reaching a mutually acceptable agreement.

(b) “Mediator” means a neutral person who conducts a
mediation. “Mediator” includes any person designated by a mediator
either to assist in the mediation or to communicate with the
participants in preparation for a mediation.

(c) “Mediation consultation” means a communication between a
person and a mediator for the purpose of initiating, considering, or
reconvening a mediation or retaining the mediator.

Comment. Subdivision (a) of Section 1115 is drawn from Code of
Civil Procedure Section 1775.1. To accommodate a wide range of
mediation styles, the definition is broad, without specific
limitations on format. For example, it would include a mediation
conducted as a number of sessions, only some of which involve the
mediator. The definition focuses on the nature of a proceeding, not
its label. A proceeding may be a “mediation” for purposes of this
chapter, even though it is denominated differently.

Under subdivision (b), a mediator must be neutral. The neutrality
requirement is drawn from Code of Civil Procedure Section 1775.1. An
attorney or other representative of a party is not neutral and so
does not qualify as a “mediator” for purposes of this chapter.

A “mediator” may be an individual, group of individuals, or
entity. See Section 175 (“person” defined). See also Section 10
(singular includes the plural). This definition of mediator
encompasses not only the neutral person who takes the lead in
conducting a mediation, but also any neutral who assists in the
mediation, such as a case-developer, interpreter, or secretary. The
definition focuses on a person’s role, not the person’s title. A
person may be a “mediator” under this chapter even though the person
has a different title, such as “ombudsperson.” Any person who meets
the definition of “mediator” must comply with Section 1121 (mediator
reports and communications), which generally prohibits a mediator
from reporting to a court or other tribunal concerning the mediated
dispute.

Subdivision (c) is drawn from former Section 1152.5, which was
amended in 1996 to explicitly protect mediation intake
communications. See 1996 Cal. Stat. ch. 174, § 1. Subdivision
(c) is not limited to communications to retain a mediator. It also
encompasses contacts concerning whether to mediate, such as where a
mediator contacts a disputant because another disputant desires to
mediate, and contacts concerning initiation or recommencement of
mediation, such as where a case-developer meets with a disputant
before mediation.

For the scope of this chapter, see Section 1117.

§ 1116.
Effect of chapter

1116. (a) Nothing in this chapter expands or limits a court’s
authority to order participation in a dispute resolution proceeding.
Nothing in this chapter authorizes or affects the enforceability of a
contract clause in which parties agree to the use of mediation.

(b) Nothing in this chapter makes admissible evidence that is
inadmissible under Section 1152 or any other statute.

Comment. Subdivision (a) of Section 1116 establishes guiding
principles for applying this chapter.

Subdivision (b) continues the first sentence of former Section
1152.5(c) without substantive change.

§ 1117.
Scope of chapter

1117. (a) Except as provided in subdivision (b), this chapter
applies to a mediation as defined in Section 1115.

(b) This chapter does not apply to either of the following:

(1) A proceeding under Part 1 (commencing with Section 1800)
of Division 5 of the Family Code or Chapter 11 (commencing with
Section 3160) of Part 2 of Division 8 of the Family Code.

(2) A settlement conference pursuant to Rule 222 of the
California Rules of Court.

Comment. Under subdivision (a) of Section 1117, mediation
confidentiality and the other safeguards of this chapter apply to a
broad range of mediations. See Section 1115 Comment.

Subdivision (b) sets forth two exceptions. Section 1117(b)(1)
continues without substantive change former Section 1152.5(b).
Special confidentiality rules apply to a proceeding in family
conciliation court or a mediation of child custody or visitation
issues. See Section 1040; Fam. Code §§ 1818, 3177.

Section 1117(b)(2) establishes that a court settlement conference
is not a mediation within the scope of this chapter. A settlement
conference is conducted under the aura of the court and is subject to
special rules.

§ 1118.
Recorded oral agreement

1118. An oral agreement “in accordance with Section 1118” means an
oral agreement that satisfies all of the following conditions:

(a) The oral agreement is recorded by a court reporter, tape
recorder, or other reliable means of sound recording.

(b) The terms of the oral agreement are recited on the record
in the presence of the parties and the mediator, and the parties
express on the record that they agree to the terms recited.

(c) The parties to the oral agreement expressly state on the
record that the agreement is enforceable or binding or words to that
effect.

(d) The recording is reduced to writing and the writing is
signed by the parties within 72 hours after it is recorded.

Comment. Section 1118 establishes a procedure for orally
memorializing an agreement, in the interest of efficiency. Provisions
permitting use of that procedure for certain purposes include
Sections 1121 (mediator reports and communications), 1122 (disclosure
by agreement), 1123 (written settlement agreements reached through
mediation), and 1124 (oral agreements reached through mediation). See
also Section 1125 (when mediation ends). For guidance on authority to
bind a litigant, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64
Cal. Rptr. 2d 571 (1997) (“The litigants’ direct participation tends
to ensure that the settlement is the result of their mature
reflection and deliberate assent.”)

§ 1119.
Mediation confidentiality

1119. 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.

Comment. Subdivision (a) of Section 1119 continues without
substantive change former Section 1152.5(a)(1), except that its
protection explicitly applies in a subsequent arbitration or
administrative adjudication, as well as in any civil action or
proceeding. See Section 120 (“civil action” includes civil
proceedings). In addition, the protection of Section 1119(a) extends
to oral communications made for the purpose of or pursuant to a
mediation, not just oral communications made in the course of the
mediation.

Subdivision (b) continues without substantive change former
Section 1152.5(a)(2), except that its protection explicitly applies
in a subsequent arbitration or administrative adjudication, as well
as in any civil action or proceeding. See Section 120 (“civil action”
includes civil proceedings). In addition, subdivision (b) expressly
encompasses any type of “writing” as defined in Section 250,
regardless of whether the representations are on paper or on some
other medium.

Subdivision (c) continues former Section 1152.5(a)(3) without
substantive change. A mediation is confidential notwithstanding the
presence of an observer, such as a person evaluating or training the
mediator or studying the mediation process.

See Sections 1115(a) (“mediation” defined), 1115(c) (“mediation
consultation” defined). See also Section 703.5 (testimony by a judge,
arbitrator, or mediator).

For examples of specialized mediation confidentiality provisions,
see Bus. & Prof. Code §§ 467.4-467.5 (community dispute
resolution programs), 6200 (attorney-client fee disputes); Code Civ.
Proc. §§ 1297.371 (international commercial disputes),
1775.10 (civil action mediation in participating courts); Fam. Code
§§ 1818 (family concilia tion court), 3177 (child custody);
Food & Agric. Code § 54453 (agricultural cooperative
bargaining associations); Gov’t Code §§ 11420.20-11420.30
(administrative adjudication), 12984-12985 (housing discrimination),
66032-66033 (land use); Ins. Code § 10089.80 (earthquake
insurance); Lab. Code § 65 (labor disputes); Welf. & Inst.
Code § 350 (dependency mediation). See also Cal. Const. art. I,
§ 1 (right to privacy); Garstang v. Superior Court, 39 Cal. App.
4th 526, 46 Cal. Rptr. 2d 84, 88 (1995) (constitutional right of
privacy protected commu nications made during mediation sessions
before an ombudsperson).

§ 1120.
Types of evidence not covered

1120. (a) Evidence otherwise admissible or subject to discovery
outside of a mediation or a mediation consultation shall not be or
become inadmissible or protected from disclosure solely by reason of
its introduction or use in a mediation or a mediation consultation.

(b) This chapter does not limit any of the following:

(1) The admissibility of an agreement to mediate a dispute.

(2) The effect of an agreement not to take a default or an
agreement to extend the time within which to act or refrain from
acting in a pending civil action.

(3) Disclosure of the mere fact that a mediator has served,
is serving, will serve, or was contacted about serving as a mediator
in a dispute.

Comment. Subdivision (a) of Section 1120 continues former Section
1152.5(a)(6) without change. It limits the scope of Section 1119
(mediation confidentiality), preventing parties from using a
mediation as a pretext to shield materials from disclosure.

Subdivision (b)(1) makes explicit that Section 1119 does not
restrict admissibility of an agreement to mediate. Subdivision (b)(2)
continues former Section 1152.5(e) without substantive change, but
also includes an express exception for extensions of litigation
deadlines. Subdivision (b)(3) makes clear that Section 1119 does not
preclude a disputant from obtaining basic information about a
mediator’s track record, which may be significant in selecting an
impartial mediator. Similarly, mediation participants may express
their views on a mediator’s performance, so long as they do not
disclose anything said or done at the mediation.

See Sections 1115(a) (“mediation” defined), 1115(b) (“mediator”
defined), 1115(c) (“mediation consultation” defined).

§ 1121.
Mediator reports and communications

1121. 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 all parties to the mediation expressly agree otherwise in
writing, or orally in accordance with Section 1118.

Comment. Section 1121 continues the first sentence of former
Section 1152.6 without substantive change, except to make clear that
(1) the section applies to all submissions, not just filings, (2) the
section is not limited to court proceedings but rather applies to all
types of adjudications, including arbitrations and administrative
adjudications, (3) the section applies to any report or statement of
opinion, however denominated, and (4) neither a mediator nor anyone
else may submit the prohibited information. The section does not
prohibit a mediator from providing a mediation participant with
feedback on the dispute in the course of the mediation.

Rather, the focus is on preventing coercion. As Section 1121
recognizes, a mediator should not be able to influence the result of
a mediation or adjudication by reporting or threatening to report to
the decisionmaker on the merits of the dispute or reasons why
mediation failed to resolve it. Similarly, a mediator should not have
authority to resolve or decide the mediated dispute, and should not
have any function for the adjudicating tribunal with regard to the
dispute, except as a non-decisionmaking neutral. See Section 1117
(scope of chapter), which excludes settlement conferences from this
chapter.

The exception to Section 1121 (permitting submission and
consideration of a mediator’s report where “all parties to the
mediation expressly agree” in writing) is modified to allow use of
the oral procedure in Section 1118 (recorded oral agreement) and to
permit making of the agreement at any time, not just before the
mediation. A mediator’s report to a court may disclose mediation
communications only if all parties to the mediation agree to the
reporting and all persons who participate in the mediation agree to
the disclosure. See Section 1122 (disclosure by agreement).

The second sentence of former Section 1152.6 is continued without
substantive change in Section 1117 (scope of chapter), except that
Section 1117 excludes proceedings under Part 1 (commencing with
Section 1800) of Division 5 of the Family Code, as well as
proceedings under Chapter 11 (commencing with Section 3160) of Part 2
of Division 8 of the Family Code.

See Sections 1115(a) (“mediation” defined), 1115(b) (“mediator”
defined). See also Sections 703.5 (testimony by a judge, arbitrator,
or mediator), 1127 (attorney’s fees), 1128 (irregularity in
proceedings).

§ 1122.
Disclosure by agreement

1122. (a) A communication or a writing, as defined in Section 250,
that is made or prepared for the purpose of, or in the course of, or
pursuant to, a mediation or a mediation consultation, is not made
inadmissible, or protected from disclosure, by provisions of this
chapter if either of the following conditions is satisfied:

(1) All persons who conduct or otherwise participate in the
mediation expressly agree in writing, or orally in accordance with
Section 1118, to disclosure of the communication, document, or
writing.

(2) The communication, document, or writing was prepared by
or on behalf of fewer than all the mediation participants, those
participants expressly agree in writing, or orally in accordance with
Section 1118, to its disclosure, and the communication, document, or
writing does not disclose anything said or done or any admission made
in the course of the mediation.

(b) For purposes of subdivision (a), if the neutral person
who conducts a mediation expressly agrees to disclosure, that
agreement also binds any other person described in subdivision (b) of
Section 1115.

Comment. Section 1122 supersedes former Section 1152.5(a)(4) and
part of former Section 1152.5(a)(2), which were unclear regarding
precisely whose agreement was required for admissibility or
disclosure of mediation communications and documents.

Subdivision (a)(1) states the general rule that mediation
documents and communications may be admitted or disclosed only upon
agreement of all participants, including not only parties but also
the mediator and other nonparties attending the mediation (e.g., a
disputant not involved in litigation, a spouse, an accountant, an
insurance representative, or an employee of a corporate affiliate).
Agreement must be express, not implied. For example, parties cannot
be deemed to have agreed in advance to disclosure merely because they
agreed to participate in a particular dispute resolution program.

Subdivision (a)(2) facilitates admissibility and disclosure of
unilaterally prepared materials, but it only applies so long as those
materials may be produced in a manner revealing nothing about the
mediation discussion. Materials that necessarily disclose mediation
communications may be admitted or disclosed only upon satisfying the
general rule of subdivision (a)(1).

Mediation materials that satisfy the requirements of subdivisions
(a)(1) or (a)(2) are not necessarily admissible or subject to
disclosure. Although the provisions on mediation confidentiality do
not bar admissibility or disclosure, there may be other bases for
exclusion.

Subdivision (b) makes clear that if the person who takes the lead
in conducting a mediation agrees to disclosure, it is unnecessary to
seek out and obtain assent from each assistant to that person, such
as a case developer, interpreter, or secretary.

For exceptions to Section 1122, see Sections 1123 (written
settlement agreements reached through mediation) and 1124 (oral
agreements reached through mediation) & Comments.

See Section 1115(a) (“mediation” defined), 1115(c) (“mediation
consultation” defined). See also Sections 703.5 (testimony by a
judge, arbitrator, or mediator), 1119 (mediation confidentiality),
1121 (mediator reports and communications).

§ 1123.
Written settlement agreements reached through mediation

1123. A written settlement agreement prepared in the course of, or
pursuant to, a mediation, is not made inadmissible, or protected from
disclosure, by provisions of this chapter if the agreement is signed
by the settling parties and any of the following conditions are
satisfied:

(a) The agreement provides that it is admissible or subject
to disclosure, or words to that effect.

(b) The agreement provides that it is enforceable or binding
or words to that effect.

(c) All parties to the agreement expressly agree in writing,
or orally in accordance with Section 1118, to its disclosure.

(d) The agreement is used to show fraud, duress, or
illegality that is relevant to an issue in dispute.

Comment. Section 1123 consolidates and clarifies provisions
governing written settlements reached through mediation. For guidance
on binding a disputant to a written settlement agreement, see
Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal. Rptr. 2d 571
(1997) (“The litigants’ direct participation tends to ensure that the
settlement is the result of their mature reflection and deliberate
assent.”).

As to an executed written settlement agreement, subdivision (a)
continues part of former Section 1152.5(a)(2). See also Ryan v.
Garcia, 27 Cal. App. 4th 1006, 1012, 33 Cal. Rptr. 2d 158, 162 (1994)
(Section 1152.5 “provides a simple means by which settlement
agreements executed during mediation can be made admissible in later
proceedings,” i.e., the “parties may consent, as part of a writing,
to subsequent admissibility of the agreement”).

Subdivision (b) is new. It is added due to the likelihood that
parties intending to be bound will use words to that effect, rather
than saying their agreement is intended to be admissible or subject
to disclosure.

As to fully executed written settlement agreements, subdivision
(c) supersedes former Section 1152.5(a)(4). To facilitate
enforceability of such agreements, disclosure pursuant to subdivision
(c) requires only agreement of the parties. Agreement of the mediator
and other mediation participants is not necessary. Subdivision (c) is
thus an exception to the general rule governing disclosure of
mediation communications by agreement. See Section 1122.

Subdivision (d) continues former Section 1152.5(a)(5) without
substantive change.

A written settlement agreement that satisfies the requirements of
subdivision (a), (b), (c), or (d) is not necessarily admissible or
subject to disclosure. Although the provisions on mediation
confidentiality do not bar admissibility or disclosure, there may be
other bases for exclusion.

See Section 1115(a) (“mediation” defined).

§ 1124.
Oral agreements reached through mediation

1124. An oral agreement made in the course of, or pursuant to, a
mediation is not made inadmissible, or protected from disclosure, by
the provisions of this chapter if any of the following conditions are
satisfied:

(a) The agreement is in accordance with Section 1118.

(b) The agreement is in accordance with subdivisions (a),
(b), and (d) of Section 1118, and all parties to the agreement
expressly agree, in writing or orally in accordance with Section
1118, to disclosure of the agreement.

(c) The agreement is in accordance with subdivisions (a),
(b), and (d) of Section 1118, and the agreement is used to show
fraud, duress, or illegality that is relevant to an issue in dispute.

Comment. Section 1124 sets forth specific circumstances under
which mediation confidentiality is inapplicable to an oral agreement
reached through mediation. Except in those circumstances, Sections
1119 (mediation confidentiality) and 1124 codify the rule of Ryan v.
Garcia, 27 Cal. App. 4th 1006, 33 Cal. Rptr. 2d 158 (1994) (mediation
confidentiality applies to oral statement of settlement terms), and
reject the contrary approach of Regents of University of California
v. Sumner, 42 Cal. App. 4th 1209, 50 Cal. Rptr. 2d 200 (1996)
(mediation confidentiality does not protect oral statement of
settlement terms).

Subdivision (a) of Section 1124 facilitates enforcement of an oral
agreement that is recorded and memorialized in writing in accordance
with Section 1118. For guidance in applying subdivision (a), see
Section 1125 (when mediation ends) & Comment.

Subdivision (b) parallels Section 1123(c).

Subdivision (c) parallels Section 1123(d).

An oral agreement that satisfies the requirements of subdivision
(a), (b), or (c) is not necessarily admissible or subject to
disclosure. Although the provisions on mediation confidentiality do
not bar admissibility or disclosure, there may be other bases for
exclusion. For guidance on binding a disputant to a settlement
agreement, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal.
Rptr. 2d 571 (1997) (“The litigants’ direct participation tends to
ensure that the settlement is the result of their mature reflection
and deliberate assent.”).

See Section 1115(a) (“mediation” defined).

§ 1125.
When mediation ends

1125. (a) For purposes of confidentiality under this chapter, a
mediation ends when any one of the following conditions is satisfied:

(1) The parties execute a written settlement agreement that
fully resolves the dispute.

(2) An oral agreement that fully resolves the dispute is
reached in accordance with Section 1118.

(3) The mediator provides the mediation participants with a
writing signed by the mediator that states that the mediation is
terminated, or words to that effect, which shall be consistent with
Section 1121.

(4) A party provides the mediator and the other mediation
participants with a writing stating that the mediation is terminated,
or words to that effect, which shall be consistent with Section 1121.
In a mediation involving more than two parties, the mediation may
continue as to the remaining parties or be terminated in accordance
with this section.

(5) For 10 calendar days, there is no communication between
the mediator and any of the parties to the mediation relating to the
dispute. The mediator and the parties may shorten or extend this time
by agreement.

(b) For purposes of confidentiality under this chapter, if a
mediation partially resolves a dispute, mediation ends when either of
the following conditions is satisfied:

(1) The parties execute a written settlement agreement that
partially resolves the dispute.

(2) An oral agreement that partially resolves the dispute is
reached in accordance with Section 1118.

(c) This section does not preclude a party from ending a
mediation without reaching an agreement. This section does not
otherwise affect the extent to which a party may terminate a
mediation.

Comment. By specifying when a mediation ends, Section 1125
provides guidance on which communications are protected by Section
1119 (mediation confidentiality).

Under subdivision (a)(1), if mediation participants reach an oral
compromise and reduce it to a written settlement fully resolving
their dispute, confidentiality extends until the agreement is signed
by all the parties. For guidance on binding a disputant to a
settlement agreement, see Williams v. Saunders, 55 Cal. App. 4th
1158, 64 Cal. Rptr. 2d 571 (1997) (“The litigants’ direct
participation tends to ensure that the settlement is the result of
their mature reflection and deliberate assent.”).

Subdivision (a)(2) applies where mediation participants fully
resolve their dispute by an oral agreement that is recorded and
memorialized in writing in accordance with Section 1118. The
mediation is over upon completion of that procedure, and the
confidentiality protections of this chapter do not apply to any later
proceedings, such as attempts to further refine the content of the
agreement. See Section 1124 (oral agreements reached through
mediation). Subdivisions (a)(3) and (a)(4) are drawn from Rule 14 of
the American Arbitration Association’s Commercial Mediation Rules (as
amended, Jan. 1, 1992). Subdivision (a)(5) applies where an
affirmative act terminating a mediation for purposes of this chapter
does not occur.

Subdivision (b) applies where mediation partially resolves a
dispute, such as when the disputants resolve only some of the issues
(e.g., contract, but not tort, liability) or when only some of the
disputants settle.

Subdivision (c) limits the effect of Section 1125.

See Sections 1115(a) (“mediation” defined), 1115(b) (“mediator”
defined).

§ 1126.
Effect of end of mediation

1126. Anything said, any admission made, or any writing that is
inadmissible, protected from disclosure, and confidential under this
chapter before a mediation ends, shall remain inadmissible, protected
from disclosure, and confidential to the same extent after the
mediation ends.

Comment. Section 1126 clarifies that mediation materials are
confidential not only during a mediation, but also after the
mediation ends pursuant to Section 1125 (when mediation ends).

See Section 1115(a) (“mediation” defined).

§ 1127.
Attorney’s fees

1127. If a person subpoenas or otherwise seeks to compel a
mediator to testify or produce a writing, as defined in Section 250,
and the court or other adjudicative body determines that the
testimony or writing is inadmissible under this chapter, or protected
from disclosure under this chapter, the court or adjudicative body
making the determination shall award reasonable attorney’s fees and
costs to the mediator against the person seeking the testimony or
writing.

Comment. Section 1127 continues former Section 1152.5(d) without
substantive change, except to clarify that either a court or another
adjudicative body (e.g., an arbitrator or an administrative tribunal)
may award the fees and costs. Because Section 1115 (definitions)
defines “mediator” to include not only the neutral person who takes
the lead in conducting a mediation, but also any neutral who assists
in the mediation, fees are available regardless of the role played by
the person subjected to discovery.

See Section 1115(b) (“mediator” defined).

§ 1128.
Irregularity in proceedings

1128. Any reference to a mediation during any subsequent trial is
an irregularity in the proceedings of the trial for the purposes of
Section 657 of the Code of Civil Procedure. Any reference to a
mediation during any other subsequent noncriminal proceeding is
grounds for vacating or modifying the decision in that proceeding, in
whole or in part, and granting a new or further hearing on all or
part of the issues, if the reference materially affected the
substantial rights of the party requesting relief.

Comment. Section 1128 is drawn from Code of Civil Procedure
Section 1775.12. The first sentence makes it an irregularity to refer
to a mediation in a subsequent civil trial; the second sentence
extends that rule to other noncriminal proceedings, such as an
administrative adjudication. An appropriate situation for invoking
this section is where a party urges the trier of fact to draw an
adverse inference from an adversary’s refusal to disclose mediation
communications.

See Section 1115 (“mediation” defined).

Conforming Revisions and Repeals

Bus. &
Prof. Code § 467.5
(amended). Communications
during funded proceedings

SECTION 1. Section 467.5 of the Business and Professions Code is
amended to read:

467.5. Notwithstanding the express application of Section
1152.5 Chapter 2 (commencing with Section 1115) of Division
9 of the Evidence Code to mediations, all proceedings conducted by a
program funded pursuant to this chapter, including, but not limited
to, arbitrations and conciliations, are subject to Section
1152.5 Chapter 2 (commencing with Section 1115) of Division
9 of the Evidence Code.

Comment. Section 467.5 is amended to reflect the relocation of
former Evidence Code Section 1152.5 and the addition of new Evidence
Code provisions governing mediation confidentiality. See Evid. Code
§§ 1115-1128 (mediation).

Code
Civ. Proc. § 1775.10 (amended). Evidence Code provisions
applicable to statements made in mediation

SEC. 2. Section 1775.10 of the Code of Civil Procedure is amended
to read:

1775.10. All statements made by the parties during the mediation
shall be subject to Sections 703.5 and 1152 and
1152.5, and Chapter 2 (commencing with Section 1115) of
Division 9, of the Evidence Code.

Comment. Section 1775.10 is amended to reflect the relocation of
former Evidence Code Section 1152.5 and the addition of new Evidence
Code provisions governing mediation confidentiality. See Evid. Code
§§ 703.5 (testimony by a judge, arbitrator, or mediator),
1115-1128 (mediation).

[Note: Section 3 of AB 939 is the new
chapter above, provided first for convenience.]

Heading of Chapter 2
(commencing with Section 1150) of Division 9 of the Evidence Code
(amended)

SEC. 4. The heading of Chapter 2 (commencing with Section 1150) of
Division 9 of the Evidence Code is amended and renumbered to read:

Chapter 2 3. Other Evidence Affected or Excluded
by Extrinsic Policies

Comment. The chapter heading is renumbered to reflect the addition
of a new Chapter 2 (commencing with Section 1115) (Mediation).

Evid. Code
§ 1152.5 (repealed). Mediation confidentiality

SEC. 5. Section 1152.5 of the Evidence Code is repealed.

1152.5. (a) When a person consults a mediator or mediation
service for the purpose of retaining the mediator or mediation
service, or when persons agree to conduct and participate in a
mediation for the purpose of compromising, settling, or resolving a
dispute in whole or in part:

(1) Except as otherwise provided in this section,
evidence of anything said or of any admission made in the course of a
consultation for mediation services or in the course of the mediation
is not admissible in evidence or subject to discovery, and disclosure
of this evidence shall not be compelled, in any civil action or
proceeding in which, pursuant to law, testimony can be compelled to
be given.

(2) Except as otherwise provided in this section,
unless the document otherwise provides, no document prepared for the
purpose of, or in the course of, or pursuant to, the mediation, or
copy thereof, is admissible in evidence or subject to discovery, and
disclosure of such a document shall not be compelled, in any civil
action or proceeding in which, pursuant to law, testimony can be
compelled to be given.

(3) When a person consults a mediator or mediation
service for the purpose of retaining the mediator or mediation
service, or when persons agree to conduct or participate in mediation
for the sole purpose of compromising, settling, or resolving a
dispute, in whole or in part, all communications, negotiations, or
settlement discussions by and between participants or mediators in
the course of a consultation for mediation services or in the
mediation shall remain confidential.

(4) All or part of a communication or document which
may be otherwise privileged or confidential may be disclosed if all
parties who conduct or otherwise participate in a mediation so
consent.

(5) A written settlement agreement, or part thereof,
is admissible to show fraud, duress, or illegality if relevant to an
issue in dispute.

(6) Evidence otherwise admissible or subject to
discovery outside of mediation shall not be or become inadmissible or
protected from disclosure solely by reason of its introduction or use
in a mediation.

(b) This section does not apply where the
admissibility of the evidence is governed by Section 1818 or 3177 of
the Family Code.

(c) Nothing in this section makes admissible evidence
that is inadmissible under Section 1152 or any other statutory
provision, including, but not limited to, the sections listed in
subdivision (d). Nothing in this section limits the confidentiality
provided pursuant to Section 65 of the Labor Code.

(d) If the testimony of a mediator is sought to be
compelled in any action or proceeding as to anything said or any
admission made in the course of a consultation for mediation services
or in the course of the mediation that is inadmissible and not
subject to disclosure under this section, the court shall award
reasonable attorney’s fees and costs to the mediator against the
person or persons seeking that testimony.

(e) Paragraph (2) of subdivision (a) does not limit
the effect of an agreement not to take a default in a pending civil
action.

Comment. The introductory clause of Section 1152.5(a) is not
continued. See Section 1119 (mediation confidentiality).

Except as noted in the Comment to Section 1119, former Section
1152.5(a)(1)-(3) are continued without substantive change in Section
1119 (mediation confidentiality). Former Section 1152.5(a)(4) is
superseded by Section 1122 (disclosure by agreement). See also
Sections 1123 (written settlement agreements reached through
mediation), 1124 (oral agreements reached through mediation). Former
Section 1152.5(a)(5) is continued without substantive change in
Section 1123 (written settlement agreements reached through
mediation). Former Section 1152.5(a)(6) is continued without
substantive change in Section 1120 (types of evidence not covered).

Former Section 1152.5(b) is continued without substantive change
in Section 1117 (scope of chapter).

The first sentence of former Section 1152.5(c) is continued
without substantive change in Section 1116 (effect of chapter). The
second sentence of former Section 1152.5(c) is superseded. See Lab.
Code § 65.

Except as noted in the Comment to Section 1127, former Section
1152.5(d) is continued without substantive change in Section 1127
(attorney’s fees).

Former Section 1152.5(e) is continued without substantive change
in Section 1120 (types of evidence not covered).

Evid. Code
§ 1152.6 (repealed). Mediator declarations or
findings

SEC. 6. Section 1152.6 of the Evidence Code is repealed.

1152.6. A mediator may not file, and a court may not
consider, any declaration or finding of any kind by the mediator,
other than a required statement of agreement or nonagreement, unless
all parties in the mediation expressly agree otherwise in writing
prior to commencement of the mediation. However, this section shall
not apply to mediation under Chapter 11 (commencing with Section
3160) of Part 2 of Division 8 of the Family Code.

Comment. Former Section 1152.6 is continued and broadened in
Section 1121 (mediator reports and communications). See Section 1121
Comment.

Gov’t Code
§ 66032 (amended). Procedures applicable to land
use mediations

SEC. 7. Section 66032 of the Government Code is amended to read:

66032. (a) Notwithstanding any provision of law to the contrary,
all time limits with respect to an action shall be tolled while the
mediator conducts the mediation, pursuant to this chapter.

(b) Mediations conducted by a mediator pursuant to this
chapter that involve less than a quorum of a legislative body or a
state body shall not be considered meetings of a legislative body
pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with
Section 54950) of Part 1 of Division 2 of Title 5), nor shall they be
considered meetings of a state body pursuant to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2).

(c) Any action taken regarding mediation conducted pursuant
to this chapter shall be taken in accordance with the provisions of
current law.

(d) Ninety days after the commencement of the mediation, and
every 90 days thereafter, the action shall be reactivated unless the
parties to the action do either of the following:

(1) Arrive at a settlement and implement it in accordance
with the provisions of current law.

(2) Agree by written stipulation to extend the mediation for
another 90-day period.

(e) A mediator shall not file, and a court shall not
consider, any declaration or finding of any kind by the mediator,
other than a required statement of agreement or nonagreement, unless
all parties in the mediation expressly agree otherwise, in
writing.

(f) Sections 703.5 and 1152.5 of the Evidence Code
shall

(e) Section 703.5 and Chapter 2 (commencing with Section
1115) of Division 9 of the Evidence Code apply to any mediation
conducted pursuant to this chapter.

Comment. Section 66032 is amended to reflect the relocation of
former Evidence Code Section 1152.5 and the addition of new Evidence
Code provisions governing mediation confidentiality. See Evid. Code
§§ 703.5 (testimony by a judge, arbitrator, or mediator),
1115-1128 (mediation).

Former subdivision (e) is deleted as surplus. See new subdivision
(e); Evid. Code § 1121 (mediator reports and communications).

Gov’t Code
§ 66033 (amended). Land use mediator’s report

SEC. 8. Section 66033 of the Government Code is amended to read:

66033. (a) At the end of the mediation, the mediator shall file a
report with the Office of Permit Assistance, consistent with
Section 1152.5 Chapter 2 (commencing with Section
1115) of Division 9 of the Evidence Code, containing each of the
following:

(1) The title of the action.

(2) The names of the parties to the action.

(3) An estimate of the costs avoided, if any, because the
parties used mediation instead of litigation to resolve their
dispute.

(b) The sole purpose of the report required by this section
is the collection of information needed by the office to prepare its
report to the Legislature pursuant to Section 66036.

Comment. Section 66033 is amended to reflect the relocation of
former Evidence Code Section 1152.5 and the addition of new Evidence
Code provisions governing mediation confidentiality. See Evid. Code
§§ 1115-1128 (mediation).

Ins.
Code § 10089.80 (amended). Disclosures and communications in
earthquake insurance mediations

SEC. 9. Section 10089.80 of the Insurance Code is amended to read:

10089.80. (a) The representatives of the insurer shall know the
facts of the case and be familiar with the allegations of the
complainant. The insurer or the insurer’s representative shall
produce at the settlement conference a copy of the policy and all
documents from the claims file relevant to the degree of loss, value
of the claim, and the fact or extent of damage.

The insured shall produce, to the extent available, all documents
relevant to the degree of loss, value of the claim, and the fact or
extent of damage.

The mediator may also order production of other documents that the
mediator determines to be relevant to the issues under mediation. If
a party declines to comply with that order, the mediator may appeal
to the commissioner for a determination of whether the documents
requested should be produced. The commissioner shall make a
determination within 21 days. However, the party ordered to produce
the documents shall not be required to produce while the issue is
before the commissioner in this 21-day period. If the ruling is in
favor of production, any insurer that is subject to an order to
participate in mediation issued under subdivision (a) of Section
10089.75 shall comply with the order to produce. Insureds, and those
insurers that are not subject to an order to participate in
mediation, shall produce the documents or decline to participate
further in the mediation after a ruling by the commissioner requiring
the production of those other documents. Declination of mediation by
the insurer under this section may be considered by the commissioner
in exercising authority under subdivision (a) of Section 10089.75.

The mediator shall have the authority to protect from disclosure
information that the mediator determines to be privileged, including,
but not limited to, information protected by the attorney-client or
work-product privileges, or to be otherwise confidential.

(b) The mediator shall determine prior to the mediation
conference whether the insured will be represented by counsel at the
mediation. The mediator shall inform the insurer whether the insured
will be represented by counsel at the mediation conference. If the
insured is represented by counsel at the mediation conference, the
insurer’s counsel may be present. If the insured is not represented
by counsel at the mediation conference, then no counsel may be
present.

(c) Sections 703.5 and 1152.5 Section 703.5
and Chapter 2 (commencing with Section 1115) of Division 9 of the
Evidence Code apply to a mediation conducted under this chapter.

(d) A mediator may not file, and a court may not
consider, a declaration or finding of any kind by the mediator, other
than a required statement of agreement or nonagreement, unless all
parties to the mediation expressly agree otherwise in
writing.

(e) The statements made by the parties,
negotiations between the parties, and documents produced at the
mediation are confidential. However, this confidentiality shall not
restrict the access of the department to documents or other
information the department seeks in order to evaluate the mediation
program or to comply with reporting requirements. This subdivision
does not affect the discoverability or admissibility of documents
that are otherwise discoverable or admissible.

Comment. Section 10089.80 is amended to reflect the relocation of
former Evidence Code Section 1152.5 and the addition of new Evidence
Code provisions governing mediation confidentiality. See Evid. Code
§§ 703.5 (testimony by a judge, arbitrator, or mediator),
1115-1128 (mediation). Former subdivision (d) is deleted as surplus.
See subdivision (c); Evid. Code § 1121 (mediator reports and
communications).

Ins. Code §
10089.82 (amended). Noncompulsory participation in
mediation

SEC. 10. Section 10089.82 of the Insurance Code is amended to
read:

10089.82. (a) An insured may not be required to use the
department’s mediation process. An insurer may not be required to use
the department’s mediation process, except as provided in Section
10089.75.

(b) Neither the insurer nor the insured is required to accept
an agreement proposed during the mediation.

(c) If the parties agree to a settlement agreement, the
insured will have three business days to rescind the agreement.
Notwithstanding Chapter 2 (commencing with Section 1115) of Division
9 of the Evidence Code, if the insured rescinds the agreement, it may
not be admitted in evidence or disclosed unless the insured and all
other parties to the agreement expressly agree to its disclosure. If
the agreement is not rescinded by the insured, it is binding on the
insured and the insurer, and acts as a release of all specific claims
for damages known at the time of the mediation presented and agreed
upon in the mediation conference. If counsel for the insured is
present at the mediation conference and a settlement is agreed upon
that is signed by the insured’s counsel, the agreement is immediately
binding on the insured and may not be rescinded.

(d) This section does not affect rights under existing law
for claims for damage that were undetected at the time of the
settlement conference.

(e) All settlements reached as a result of
department-referred mediation shall address only those issues raised
for the purpose of resolution. Settlements and any accompanying
releases are not effective to settle or resolve any claim not
addressed by the mediator for the purpose of resolution, nor any
claim that the insured may have related to the insurer’s conduct in
handling the claim.

Referral to mediation or the pendency of a mediation under this
article is not a basis to prevent or stay the filing of civil
litigation arising in whole or in part out of the same facts. Any
applicable statute of limitations is tolled for the number of days
beginning from the referral to mediation until the date on which the
mediation is either completed or declined, or the date on which the
insured fails to appear for a scheduled mediation for the second
time, or, in the event that a settlement is completed, the expiration
of any applicable three business day cooling off period.

Comment. Subdivision (c) of Section 10089.82 is amended to reflect
the addition of new Evidence Code provisions governing mediation
confidentiality. See Evid. Code §§ 1115-1128 (mediation).

Lab. Code
§ 65 (amended). Powers and duties of department; access to
records

SEC. 11. Section 65 of the Labor Code is amended to read:

65. The department may investigate and mediate labor disputes
providing any bona fide party to such this type of
dispute requests intervention by the department and the department
may proffer its services to both parties when work stoppage is
threatened and neither party requests intervention. In the interest
of preventing labor disputes the department shall endeavor to promote
sound union-employer relationships. The department may arbitrate or
arrange for the selection of boards of arbitration on such terms as
all of the bona fide parties to such the dispute may
agree upon. Records Any decision or award arising
out of an arbitration conducted pursuant to this section is a public
record. Section 703.5 and Chapter 2 (commencing with Section 1115) of
Division 9 of the Evidence Code apply to a mediation conducted by the
California State Mediation and Conciliation Service, and any person
conducting the mediation. All other records of the department
relating to labor disputes are confidential; provided,
however, that any decision or award arising out of arbitration
proceedings shall be a public record.

Comment. Section 65 is amended to reflect the addition of new Evi
dence Code provisions governing mediation confidentiality and make
clear that those provisions apply to mediations conducted by the
State Mediation and Conciliation Service. See Evid. Code §§
703.5 (testimony by a judge, arbitrator, or mediator), 1115-1128
(mediation).

Welf. &
Inst. Code § 350 (amended). Conduct of proceedings

SEC. 12. Section 350 of the Welfare and Institutions Code is
amended to read:

350. (a) (1) The judge of the juvenile court shall control all
proceedings during the hearings with a view to the expeditious and
effective ascertainment of the jurisdictional facts and the
ascertainment of all information relative to the present condition
and future welfare of the person upon whose behalf the petition is
brought. Except where there is a contested issue of fact or law, the
proceedings shall be conducted in an informal nonadversary atmosphere
with a view to obtaining the maximum cooperation of the minor upon
whose behalf the petition is brought and all persons interested in
his or her welfare with any provisions that the court may make for
the disposition and care of the minor.

(2) Each juvenile court is encouraged to develop a dependency
mediation program to provide a problem-solving forum for all
interested persons to develop a plan in the best interests of the
child, emphasizing family preservation and strengthening. The
Legislature finds that mediation of these matters assists the court
in resolving conflict, and helps the court to intervene in a
constructive manner in those cases where court intervention is
necessary. Notwithstanding any other provision of law, no person,
except the mediator, who is required to report suspected child abuse
pursuant to the Child Abuse and Neglect Reporting Act (Article 2.5
(commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of
the Penal Code), shall be exempted from those requirements under
Section 1152.5 Chapter 2 (commencing with Section
1115) of Division 9 of the Evidence Code because he or she agreed to
participate in a dependency mediation program established in the
juvenile court.

If a dependency mediation program has been established in a
juvenile court, and if mediation is requested by any person who the
judge or referee deems to have a direct and legitimate interest in
the particular case, or on the court’s own motion, the matter may be
set for confidential mediation to develop a plan in the best
interests of the child, utilizing resources within the family first
and within the community if required.

(b) The testimony of a minor may be taken in chambers and
outside the presence of the minor’s parent or parents, if the minor’s
parent or parents are represented by counsel, the counsel is present
and any of the following circumstances exist:

(1) The court determines that testimony in chambers is
necessary to ensure truthful testimony.

(2) The minor is likely to be intimidated by a formal
courtroom setting.

(3) The minor is afraid to testify in front of his or her
parent or parents.

After testimony in chambers, the parent or parents of the minor
may elect to have the court reporter read back the testimony or have
the testimony summarized by counsel for the parent or parents.

The testimony of a minor also may be taken in chambers and outside
the presence of the guardian or guardians of a minor under the
circumstances specified in this subdivision.

(c) At any hearing in which the probation department bears
the burden of proof, after the presentation of evidence on behalf of
the probation department and the minor has been closed, the court, on
motion of the minor, parent, or guardian, or on its own motion, shall
order whatever action the law requires of it if the court, upon
weighing all of the evidence then before it, finds that the burden of
proof has not been met.

That action includes, but is not limited to, the dismissal of the
petition and release of the minor at a jurisdictional hearing, the
return of the minor at an out-of-home review held prior to the
permanency planning hearing, or the termination of jurisdiction at an
in-home review. If the motion is not granted, the parent or guardian
may offer evidence without first having reserved that right.

Comment. Subdivision (a)(2) of Section 350 is amended to reflect
the relocation of former Evidence Code Section 1152.5 and the
addition of new Evidence Code provisions governing mediation
confidentiality. See Evid. Code §§ 1115-1128
(mediation).

Disclaimer: Ron believes the above to be completely accurate,
based on electronic communications from the Commission, but
encourages you to get a free official printed copy of the legislation
(AB 939 – Ortiz) directly from the state printer (request at
916-445-2323), and makes no representations that the above is without
inadvertent typographical errors. If you discover any, please
promptly notify Ron at 510-843-6074. Thanks.

“Are you a mediator or an attorney involved with mediation in California?
Ron Kelly initiated and guided the formation of this new code chapter
governing mediation in California. He served as the Law Revision
Commission’s expert advisor in drafting the legislation enacting it. Ron
provides workshops fully explaining your new responsibilites under these
laws, and the ways you can provide for the hidden problems in the new laws
in your written agreements. He also provides a reference guide which boils
down all the critical parts of the statutes and the legislative intent into
a single laminated reference sheet.

For more information please visit

To contact Ron, please call 510-843-6074 or Fax:
510-843-4439

                       

Ron Kelly - Arbitrator, Mediator, Trainer

Mediating since 1970 and arbitrating since 1986, Ron has initiated and guided enactment of dozens of key sections of California law protecting the integrity of ADR. He's a founder of two of California's main ADR professional organizations. He's been honored with eight major awards for his pioneering work in building… MORE >