From Michael Carbone’s Resolving It newsletter.
In 1997 the California Legislature enacted Evidence Code Sections 1115-1128, which established mediation confidentiality as an evidentiary exclusion in California. The purposes of this legislation were (a) to clarify and codify the law and (b) to encourage participants in mediation to be open and candid with the mediator and with each other. The central point of the law is that no communications that take place during mediation can be used in any trial, hearing, or other legal proceeding.
It is important to understand what confidentiality means and does not mean. First, and although some mediators may disagree, I tell mediation participants that confidentiality is only a rule of evidence, and that they are not prohibited from telling third parties, such as spouses and friends, about what was said during the mediation. (Even if I am wrong, the enforcement of such a prohibition would be problematic.) I also add though, that as an ethical matter I do not repeat to outsiders what took place during the mediation.
Two other distinctions must also be drawn. Settlement agreements frequently contain confidentiality agreements that prohibit disclosure of the amount and other terms of the settlement. These provisions are contractual in nature, and in addition to what the law provides. And they apply to the settlement, not to the communications that led to the settlement.
The other distinction pertains to the use of private caucuses. Parties must be able to speak privately with the mediator without fear that their statements will be repeated to adverse parties. Because there is nothing in the Evidence Code that pertains specifically to caucuses, it is important for the parties to have a clear understanding with the mediator about what information is to be kept secret. Some mediators have a policy that everything will be kept under wraps unless the mediator is told that certain information can be communicated in the other room. My policy is the opposite. Because I am expected to serve as a conduit, I ask that the parties tell me what information has to remain private before I leave the caucus room. Usually it’s not very much, but I make a note of it.
We have been benefiting from the confidentiality of mediation for the past 17 years. At the same time however, it is a complex subject that has given rise to misunderstandings, controversies and even some litigation. In 2007, I wrote A Primer on Mediation Confidentiality, in which I attempted to clear up some of the misunderstandings and to provide a basic working knowledge of the subject. I hope that you will still find it useful today.
Confidentiality has served us well and has survived numerous attempts to change or even to repeal it. A recent case has given rise to some new calls for change in the interest of “justice.” Hopefully these calls will be successfully resisted.