Facts About Mediation
Mediation is a form of Alternative Dispute Resolution (ADR.) Mediation is an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution. The neutral third party is the mediator. The decision to mediate is completely voluntary. Mediation gives the parties the opportunity to discuss the issues raised in the case, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into resolutions. A mediator does not impose a decision on the parties. Instead, the mediator helps the parties to agree on a mutually acceptable resolution. The mediation process is strictly confidential. Information disclosed during mediation will not be revealed to anyone.
How Mediation Works
If both parties agree, a mediation session conducted by a trained and experienced mediator is scheduled. While it is not necessary to have an attorney either party may choose to do so. It is important that persons attending the mediation session have the authority to resolve the dispute.
California is the guiding state when it comes to mediation. Under California’s original law, from the time you contact a mediator to ask about mediation until the mediation is over, everything said is confidential. This means that nothing written specifically for the mediation or said during the mediation is subject to discovery (being revealed) in any non-criminal proceeding. Furthermore, the mediator cannot be called to testify about what went on in the mediation in any later non-criminal proceeding. This means you can have complete confidence that what you tell the mediator in private will not be revealed.
Exceptions to the Mediation Confidentiality Rule
The following exceptions have been made to the mediation confidentiality rule:
Mediators can testify in a civil proceeding as to statements or conduct of the parties that give rise to civil or criminal sanctions that may be constituted as a crime, that could be subject to investigation by the State Bar or Commission on Judicial Performance, or that could give rise to disqualification proceedings due to judicial bias. (Evidence Code Section 703.5 (a-d))
The parties of the mediation report to the court any non-communicative conduct that was done in bad faith. (Evidence Code Section 1121)
Failure to object to evidence brought in during a mediation proceeding will allow this evidence to be brought into court later. (Regents of University of California v. Sumner)
Mental competence of a party may be reported to call into question a settlement that was reached during a mediation session. (Olam v. Congress Mortgage Company)
If parties agree contractually to waive confidentiality, then confidentiality will be waived by the court and the information released. (Evidence Code Section 1122(a)(1))
These are just a few of the established exceptions to confidentiality.