1. Mediation confidentiality binds only the mediator, and not other persons who work in the mediator’s office.
2. A mediator can testify about what happened in a commercial mediation, but not about a family law mediation.
3. If the parties agree, the mediator can be compelled to testify about what happened in a mediation.
4. The California Supreme Court will imply an exception to mediation confidentiality when justice requires it.
5. If a mediator terminates the mediation, the parties cannot resume discussion with a substitute mediator.
6. If mediation ends before a settlement is reached, mediation conversations and documents lose their confidentiality protection.
7. Local court rules can permit a mediator to make recommendations to the court in child custody cases.
8. An expert’s report automatically becomes admissible if a party relies on it during mediation.
9. After mediation terminates, a party can present evidence of the fact that discussions occurred, including disclosing the name of the mediator.
10. A chart prepared during mediation is never admissible to prove that a settlement was reached.
11. A settlement agreement reached during mediation is automatically admissible in subsequent judicial enforcement proceedings.
12. If a party unsuccessfully attempts to compel a mediator to testify in a subsequent proceeding, the mediator is entitled to an award of attorneys fees.
13. For a mediated settlement agreement to be admissible, the parties must have a clear agreement to that effect.
14. Mediation confidentiality prohibits a party from submitting to the court evidence of a lawyer’s bad faith conduct during mediation.
15. Faulty legal advice given to a client during mediation but outside the presence of the mediator is admissible in the client’s subsequent malpractice case.
16. It is helpful to expressly agree in writing that a mediated settlement agreement is admissible in subsequent enforcement proceedings.
17. Mediation confidentiality exists to foster full and frank settlement discussions between the parties.
18. Mediation can be terminated only by way of an express writing.
19. California courts strictly enforce mediation confidentiality.
20. An exception to mediation confidentiality exists when the opposing parties expressly agree that information may be disclosed to the court.