Confidentiality in Mediation
October 2011
To encourage full and frank settlement discussions, the Legislature has decreed that just about everything said in mediation is confidential—and courts are serious about enforcing that mandate.
General Credit
1. Mediation confidentiality binds only the mediator, and not other persons who work in the mediator’s office. True False
2. A mediator can testify about what happened in a commercial mediation, but not about a family law mediation. True False
3. If the parties agree, the mediator can be compelled to testify about what happened in a mediation. True False
4. The California Supreme Court will imply an exception to mediation confidentiality when justice requires it. True False
5. If a mediator terminates the mediation, the parties cannot resume discussion with a substitute mediator. True False
6. If mediation ends before a settlement is reached, mediation conversations and documents lose their confidentiality protection. True False
7. Local court rules can permit a mediator to make recommendations to the court in child custody cases. True False
8. An expert’s report automatically becomes admissible if a party relies on it during mediation. True False
9. After mediation terminates, a party can present evidence of the fact that discussions occurred, including disclosing the name of the mediator. True False
10. A chart prepared during mediation is never admissible to prove that a settlement was reached. True False
11. A settlement agreement reached during mediation is automatically admissible in subsequent judicial enforcement proceedings. True False
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. True False
13. For a mediated settlement agreement to be admissible, the parties must have a clear agreement to that effect. True False
14. Mediation confidentiality prohibits a party from submitting to the court evidence of a lawyer’s bad faith conduct during mediation. True False
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. True False
16. It is helpful to expressly agree in writing that a mediated settlement agreement is admissible in subsequent enforcement proceedings. True False
17. Mediation confidentiality exists to foster full and frank settlement discussions between the parties. True False
18. Mediation can be terminated only by way of an express writing. True False
19. California courts strictly enforce mediation confidentiality. True False
20. An exception to mediation confidentiality exists when the opposing parties expressly agree that information may be disclosed to the court. True False
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