Mediation Privilege Bars Evidence From Mediator Unless Parties Specifically Agree

Discussions that occur in mediation are confidential and cannot be introduced into evidence in later proceedings. And when it comes to the mediator, such testimony cannot be compelled “unless all parties to the mediation expressly agree . . . .” (Cal. Evidence Code section 703.5; see also, Evidence Code section 1119.)

In Radford v. Shehorn, Justice Arthur Gilbert of the Second District Court of Appeal offered a pithy discussion of mediator confidentially and the exclusion from evidence of mediator testimony: 

“Mediators facilitate settlement of legal disputes.  They use a variety of techniques to achieve that goal which include listening, enlightening, suggesting, empathizing and, sometimes, cajoling.  But once the mediation is concluded, the mediator may not offer clarification concerning the mediation or a disputed settlement unless the parties agree otherwise.  Like an actor whose concluding scene occurs in Act 2, the mediator may not reenter the stage to play a part in Act 3.”

For your convenience, a complete copy of this court ruling is attached.

We regularly advise clients about arbitration, mediation and other ADR issues.  Feel free to give us a call if you have questions or issues in this area.