The Complete Text of
California's Evidence Code
Mediation Chapter
...Including the Official Legislative Intent
Summary: Effective January 1, 1998, mediation law across
seven different California codes was repealed, amended and unified into a new
Evidence Code chapter. It governs mediation in the fields of civil actions,
insurance, the environment, family, labor-management, community, agency
actions, etc.
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. The following 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.
The legislation is indexed by section. To go to a specific section, please
click on the section number below.
Mediation Chapter - Evidence
Code §§1115-1128 (added). Mediation
§ 1115. Definitions
§ 1116. Effect of chapter
§ 1117. Scope of chapter
§ 1118. Recorded oral agreement
§ 1119. Mediation confidentiality
§ 1120. Types of evidence not covered
§ 1121. Mediator reports and communications
§ 1122. Disclosure by agreement
§ 1123. Written settlement agreements reached through
mediation
§ 1124. Oral agreements reached through mediation
§ 1125. When mediation ends
§ 1126. Effect of end of mediation
§ 1127. Attorney's fees
§ 1128. Irregularity in proceedings
Conforming Revisions and Repeals
Business & Professions Code § 467.5 (amended).
Communications during funded proceedings
Code of Civil Procedures § 1775.10 (amended).
Evidence Code provisions applicable to statements made in mediation
Evidence Code § 1152.5 (repealed). Mediation confidentiality
Evidence Code § 1152.6 (repealed). Mediator declarations
or findings
Government Code § 66032 (amended). Procedures applicable
to land use mediations
Government Code § 66033 (amended). Land use mediator's
report
Insurance Code § 10089.80 (amended).
Disclosures and communications in earthquake insurance mediations
Insurance Code § 10089.82 (amended). Noncompulsory
participation in mediation
Labor Code § 65 (amended). Powers and duties of department
Welfare & Institutions Code § 350 (amended). Conduct
of proceedings
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.
^ Return to Section Index ^
§ 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.
^ Return to Section Index ^
§ 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.
^ Return to Section Index ^
§ 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.")
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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).
^ Return to Section Index ^
§ 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
Business and
Professions 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).
^ Return to Section Index ^
Code of
Civil Procedure § 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).
^ Return to Section Index ^
Evidence 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).
^ Return to Section Index ^
Evidence 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.
^ Return to Section Index ^
Government 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).
^ Return to Section Index ^
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).
^ Return to Section Index ^
Insurance 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).
^ Return to Section Index ^
Insurance
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).
^ Return to Section Index ^
Labor 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).
^ Return to Section Index ^
Welfare &
Institutions 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).
^ Return to Section Index ^
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