Are settlement conference statements protected by mediation privilege california

Cal. Evidence Code section 1123, subd. (b) provides that a written settlement document prepared in mediation is not rendered inadmissible by the mediation confidentiality statutes if it “provides that it is enforceable or binding or words to that effect.” While the language of the statute leaves room for differences in language, “arbitration clauses, forum selection clauses, choice of law provisions, terms contemplating remedies for breach, and similar commonly employed enforcement provisions typically negotiated in settlement discussions do not meet the requirements of section 1123(b).” 40 Cal.4th at p. 199.

That statute provides that the mediation privilege does not apply to “[a] settlement conference pursuant to Rule 3.1380 of the California Rules of Court[,]” e.g., a mandatory settlement conference.


Are settlement negotiations protected by the mediation privilege?

The fact, extended by Cassel, that the mediation privilege is broad and inclusive, has and will continue to promote a false sense of security that other types of settlement negotiations will be protected by the privilege in the same way as mediations.

What is the mediation privilege in California?

Ask most lawyers about the “mediation privilege,” set forth in California Evidence Code sections 1115-1128, and you will hear the well-worn idiom that anything said “for the purpose of, in the course of, or pursuant to” a mediation is confidential and inadmissible beyond the scope of the mediation.

Are settlement communications privileged under California law?

Next, let’s look at California law, where communications made in the course of settlement discussions are not per se “privileged.” Covell v. Superior Court, 159 Cal. App. 3d 39, 42 (1984). Seems in California at least, writing the words “privileged and confidential settlement communication” does not make it so.

When does a court set a mandatory settlement conference?

Rule 3.1380. Mandatory settlement conferences On the court’s own motion or at the request of any party, the court may set one or more mandatory settlement conferences. (Subd (a) amended effective January 1, 2008; previously amended effective January 1, 1995, and July 1, 2002.)

Are settlement conference statements confidential?

Code § 1121.) In contrast, “settlement conferences” themselves are not confidential. Instead, what is confidential are the parties’ demands and settlement offers, which cannot be introduced at trial to prove liability under Evidence Code section 1152.

Are mediated settlement agreements confidential?

As parties expect the mediated settlement agreement to be confidential, any disclosure should be subject to leave of court.

Is mediation confidential in California?

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 Evidence Code.

Are communications with a mediator privileged?

One judicial circuit has adopted the model rules, which provide that matters discussed with the mediator are confidential and privileged. The privilege, however, resides with the mediator and cannot be waived by the parties.

Is mediation always confidential?

“All communications, negotiations, or settlement offers by and between participants in the course of a mediation or mediation consultation must remain confidential.” Evid.

Can confidentiality be waived in mediation?

There is no special mediation confidentiality or privilege. But the parties can bind themselves to a contractual confidentiality. This can be waived. It can also be lost by unconscionable behaviour including threats or blackmail.

Are settlement agreements discoverable in California?

Given the strong public policy favoring confidential settlements, California courts will generally rule in favor of nondisclosure. As a result, in most cases, it is reasonable to resist the production of confidential settlement agreements in discovery.

Who is bound by the confidentiality of the mediation process?

All aspects of a Mediation are confidential and remain known to only the parties and the Mediator. All participants are obliged to keep confidential everything that transpires during a Mediation.

Can mediation be disclosed?

The proceedings are confidential both as between the parties and the mediator. As a result, even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision.

Are settlement discussions privileged?

B. As to mediations, confidentiality protections come from Evidence Code Sections 1115 -1128 and 703.5. Section 1119(c) states that “all communications, negotiations, or settlement discussions by and between participants in the course of a mediation shall remain confidential” (emphasis added).

What does the mediation privilege cover?

The mediation privilege is contained in Evidence Code sections 1115-1128. 2. The mediation privilege applies to anything said “for the purpose of, in the course of, or pursuant to” a mediation, making those statements confidential and inadmissible beyond the scope of the mediation.

Why is mediation confidential?

Requiring mediation to be confidential allows the parties to more meaningfully interact and explore potential resolutions that might be satisfactory to all involved without fear that settlement offers or proposal will be used against them.

Can you disclose a settlement agreement?

Yes, you can! As you have seen in the previous section, section 43J of the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998, provides that any clause in a settlement that tries to prevent workers from making protected disclosures is void.

What is a confidential settlement proposal?

A confidential settlement agreement is a standard provision that is included in most settlement agreements. A confidential settlement agreement prevents the parties to the settlement and their attorneys from disclosing how the agreement was reached and details about the dispute.

Are negotiations privileged?

The Senate amendment provides that evidence of conduct or statements made in compromise negotiations is not admissible. The Senate amendment also provides that the rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

Are demand letters confidential?

A demand letter, even though it only threatens a lawsuit and doesn’t actually start one, may trigger this duty. All information that could possibly relate to the claims made in the demand letter must be kept confidential and protected. Check insurance coverage and notice requirements.

What is the second type of mediation?

The second is the type of mediation conducted as part of voluntary settlement conferences. In that form, lawyers are present and the mediator takes a more active role, often expressing an opinion on the merits, but without authority to reach a decision.”. Id., at 1139 (emphasis added).

What is a tenant action?

Tenants bring an action alleging that a building owner and builder conspired to conceal construction defects from them. The tenants seek to introduce into evidence construction defect reports, photographs and witness interview statements prepared for mediation in an earlier action between the owner and the builder.

Does mediation protect counsel?

However, despite the breadth of the mediation privilege, in other types of proceedings, caution must be exercised to assure that the mediation privilege will protect counsel and their clients from later proceedings based upon what happens at mediation.

Does Rule 3.727 (6) vitiate mediation privilege?

Some might argue that the Rule 3.727 (6) is merely a facility for organizing and promoting voluntary mediation and that a court’s order reflecting the parties’ agreement to participate in mediation does not vitiate the mediation privilege . Yet, questions and confusion remain.

Is mediation privilege broad and inclusive?

The fact, extended by Cassel, that the mediation privilege is broad and inclusive, has and will continue to promote a false sense of security that other types of settlement negotiations will be protected by the privilege in the same way as mediations.

What are the confidentiality provisions of mediation?

Section 1119 (c) states that “ all communications, negotiations, or settlement discussions by and between participants in the course of a mediation shall remain confidential” (emphasis added). Section 1119 (a) states that no evidence of “ anything said ” during the course of mediation is “admissible or subject to discovery.” And disclosure of such evidence may not be compelled in any proceeding in which testimony may be compelled. Section 1119 (b) states that “ [n]o writing . . . 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 addition, Section 703.5 states that a mediator is not competent to testify in any civil proceeding as to any statement or conduct at mediation, subject only to some very limited exceptions related to contempt and criminal conduct.

What is the scope of confidentiality in mediation?

The scope of confidentiality in mediation is quite broad, and it protects virtually anything that is said, done or produced, regardless of the purpose for which disclosure is sought. And it applies to all participants, not just the parties and their attorneys. Ca.

What is Section 1119 in the Evidence Code?

Evidence Code Section 1119 (a) does not limit confidentiality just to statements and writings during the “course of” mediation. Section 1119 (a) uses the phrases “for the purpose of” and “pursuant to”.

What is the confidentiality clause in the Evidence Code?

The confidentiality provisions of these Evidence Code sections raise issues of evidentiary exclusion. The statutes, and the cases interpreting them, speak in terms of whether evidence is admissible, or whether it is excluded due to its confidential character.

What is the 1123 settlement agreement?

Written Settlement Agreement Evidence Code Section 1123 provides for the disclosure of a written settlement agreement prepared and executed in the course of mediation. It would be virtually impossible to enforce a settlement if the written agreement could not be disclosed to the court.

What is Section 1152?

But Section 1152 only protects against offers of compromise being used to prove liability for the claim that is the subject of the offer.

Is confidentiality the same as confidentiality in mediation?

And confidentiality in the context of settlement is not the same as confidentiality in the context of mediation.

Who must attend a settlement conference?

Trial counsel, parties, and persons with full authority to settle the case must personally attend the conference, unless excused by the court for good cause. If any consent to settle is required for any reason, the party with that consensual authority must be personally present at the conference.

How many days before settlement conference?

No later than five court days before the initial date set for the settlement conference, each party must submit to the court and serve on each party a mandatory settlement conference statement containing: (2) An itemization of economic and noneconomic damages by each plaintiff;


Never say never when it comes to the cosmic mysteries of the rules of evidence.


What if your “privileged and confidential settlement communication” is offered for something other than to prove liability? Courts considering the issue frame the question not as one of privilege, but one of relevancy. Here is where it gets interesting. (I promised more on relevancy in an earlier post ).


Time for some rocket science. In 2015, the National Aeronautics and Space Administration (“NASA”) suspended a company called KST Data, Inc. (“KST”) from contracting with the United States Government (the “Suspension”) due to allegations of serious misconduct. The Department of Justice also launched a criminal investigation into KST.


Yeah, so what. We are all bankruptcy lawyers, and that California state court stuff won’t cut it under federal law.

The Takeaway

First and foremost, ignore everything you just read if the evidence relates to a mediation. Different rules apply, and those rules include a mediation privilege. (Something else for a future post – I see a disturbing trend here).

I. The Basis For The Evidentiary Exclusion of Settlement Discussions.

California evidence code section 1152 (modeled on Federal Rule of Evidences 408) provides: “(a) Evidence that a person has, in compromise …furnished or offered or promised to furnish money… to another who has sustained …or claims that .., he has sustained or will sustain.. loss or damage, as well as any conduct or stateme…

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II. The Scope of Section 1152’S Evidentiary Exclusion.

  • The plain language of Evidence Code Section 408 (a) establishes that neither evidence of the settlement negotiations nor the proffered $50,000 payment is admissible and offered to prove liability. But there are several exceptions. Subdivision (b) allows such evidence in actions for bad faith breach of the insurance contract, whereas subdivision (c) Permits evidence Regarding parti…

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v. The Apology Trap

  • Research has demonstrated that making an apology, especially early in the dispute, will almost certainly reduce the demand for damages, improve the relationship between the disputants, and make a defendant look better to plaintiffs and jurors alike. It may even end the dispute altogether. We are often taught to equate an apology with the end of the conflict. Yet, apologies are extrem…

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