Frequently Asked Questions
What are the different hearing formats?
Some of the hearing formats include Arbitration, Mediation, Discovery Referee, Special Master and Judge Pro Tem. For a description of what these formats mean, click here.
Does a lawsuit have to be on file?
No. Mediations and arbitrations are often conducted, pursuant to a contract between the parties or by some other agreement, when there is no lawsuit filed in Court. This can be beneficial to the parties from an economical and psychological standpoint.
Can mediation be utilized in all cases?
Yes, the mediation format is particularly suited to any matter because of the informal, yet confidential, nature of the proceedings and the opportunity afforded to the mediator to be flexible and employ different styles depending the type of case and needs of the parties and their attorneys.
What does it cost to use AMC's services?
The Arbitration and Mediation Center's services are very cost effective when compared to litigation. Click here for a complete explanation of the costs associated with using AMC.
Who pays the cost of the mediation?
The cost is typically shared equally by the parties but they may agree to other arrangements.
Law of Confidentiality in Mediations
The law recognizes that confidentiality is essential to mediations. With the protection of confidentiality, participants in the mediation process are able to be direct and candid in exploring all of the issues. This makes the process more productive and increases the opportunities for the parties to reach a satisfactory resolution to whatever concern faces them. The mediator shall not disclose that which a party expects to be kept confidential unless given permission by all parties.
The California Evidence Code contains numerous provisions governing mediations:
§703.5. Judges, arbitrators or mediators as witnesses; subsequent civil proceeding
No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a)give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or )6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure. However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.
§1117. Application of chapter
(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 3150 of Part 2 of Division 8 of the Family Code.
(2) A settlement conference pursuant to Rule 222 of the California Rules of Court.
§1119. Written or oral communications during mediation process; admissibility
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 give.
(c) all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.
§1121. Mediator's reports and findings
Neither a mediator nor anyone else may submit to a court of 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.
§1123. Written settlement agreements; conditions to admissibility
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 this is relevant to an issue in dispute.
§1125. End of mediation; satisfaction of conditions
(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.
Please note that the confidentiality privilege does not apply to:
1. Custody and visitation issues in Family Law cases (Family Law Code §3160) or
2. Mandatory Settlement Conferences (Evidence Code §1117(b))
Also see the following statutes regarding mediations:
Calif. Rules of Court §1630 which implements the Civil Action Mediation Act in CCP§§1775 et seq.
Calif. Rules of Court §§1640-1640.89 are the local rules
CCP§ 1730 et seq regarding the Early Mediation Pilot Programs
Sonoma and Contra Costa Counties are voluntary mediation programs
Fresno and San Diego Counties are mandatory programs under these State rules.
CCP§§ 1775-1775.15 is the Civil Action Mediation Program; court-ordered program.
Relevant Cases on Confidentiality
Foxgate Homeowners Association, Inc. v. Bramalea California Inc.
26 Cal 4th 1 (2001)
Construction Defect case- Attorney refused to participate in the mediation.
Holding- No exceptions to mediation confidentiality regarding communications.
Only a party may advise the court regarding conduct.
Rinaker v. Superior Court
62 Cal.App. 4th 155 (1998)
Minor described his knowledge of an incident during mediation. At a subsequent juvenile delinquent hearing, the mediator was called as a witness, and objected. The Court found an exception to section 1119 based on the due process right of confrontation- if the subsequent statements are inconsistent with statements made in mediation, the mediator may be called as a witness.
Olam v. Congress Mortgage Company
68 F. Supp.2nd 1100 (1999)
The issue was competency of a party to a mediation with regard to the signed settlement agreement. The mediator testified on the subject, with the court finding an exception to section 1119 for this purpose.
Eisendreth v. Superior Court (Rogers)
109 Cal. App. 4th 351 (2003)
A husband in a dissolution action argued that the mediation settlement agreement did not properly set forth the terms of the agreement reached. Not all parties agreed to waive the mediation confidentiality, and testimony going to the mediation was barred. The court acknowledged the arguable harsh result, but deferred to the legislature's apparent intent in drafting section 1119.
Rojas v. Superior Court (Coffin)
33 Cal. 4th 407 (2004)
Two related cases provide a forum for the court to hold that all mediation writings (per Evidence Code section 250) are protected by section 1119, and not discoverable. Non-writings, as in actual test samples, are not protected by section 1119. The cases involved construction defect claims, where the first settled in mediation and the agreement described that all testing was done pursuant to mediation. In the second suit, plaintiffs sought testing results, expert reports, and photos from the first suit. The Supreme Court again acknowledged the harsh result of the legislature's apparent intent.
Stewart v. Preston Pipeline, Inc.
134 Cal. App.4th 1565 (2005)
A case settled in mediation and defense counsel signed the agreement with the authority of his client. The document contained the provision allowing waiver of confidentiality to enforce the agreement. Plaintiff had a change of heart and claimed the agreement inadmissible to enforce the settlement pursuant to section 1119. The court held that an attorney could waive mediation confidentiality on a client's behalf- the agreement was admissible.
Wimsatt v. Superior Court
152 Cal. App. 4th 137 (2007)
An attorney's alleged malpractice during mediation is undiscoverable. Here, the attorney allegedly lowered a settlement demand without authority, and the case settled for less than its settlement value.
Fair v. Baktiari
40 Cal. 4th 189 (2006)
A term sheet prepared at the end of a mediation was inadmissible because it did not contain "words to the effect" that the settlement terms were "enforceable or binding". The agreement was unenforceable.
Simmons v. Ghaderi
44 Cal. 4th 570 (2008)
Defendant doctor gave written consent to a settlement amount prior to mediation, then verbally revoked the consent after the plaintiff accepted the offer. No one signed the settlement agreement for the defense. At trial 15 months later, the doctor raised section 1119 as a defense to enforcement, and the court applied estoppel. The Supreme Court reversed- evidence of the oral agreement was inadmissible, and non-statutory theories like estoppel or waiver do not affect section 1119. The "settlement" was unenforceable and the case remanded for trial.
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) "Mediators" 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.
§1118. Oral agreements
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 recorders, or other reliable means of sounding 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.
§1120. Evidence otherwise admissible
(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 contracted about serving as a mediator in a dispute.
§1122. Communications or writings, conditions to admissibility
(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.
§1124. Oral agreements, conditions to admissibility
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.
§1126. Protections before and after mediation ends
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.
§1127. Attorney's fees and costs
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 of adjudicative body making the determination shall award reasonable attorney's fees and costs to the mediator against the person seeking the testimony or writing.
§1128. Subsequent trials; references to mediation
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 of further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.
Babasa v. Lens Crafters, Inc.
498 F 3d 972 (2007)
Federal courts will not apply section 1119. A party learned of the basis for removing a state court case by reading a mediation brief, and despite its confidential status in state court, the brief would be considered in federal court.
Rael v. Davis
166 Cal. App. 4th 1608 (2008)
All but one party signed a settlement agreement at mediation. The non-signator was not present, but his attorney signed the document. That party opposed enforcement of the agreement, and the court ruled that mediation confidentiality had not been waived- authority had not been given. The document was not discoverable, and its attorney's fees provision also was unenforceable. Again, the court addressed the fairness of the result, but pointed to the legislature's apparent intent.
Estate of Thottam
165 Cal.App. 4th 1331 (2008)
Siblings went to mediation to determine distribution of estate assets. They produced a chart describing each person's allocations, and each sibling initialed the chart. The court held that the chart was a written settlement agreement, and that an agreement to disclose a written settlement agreement reached in mediation need not be entered into at or after the time of the settlement agreement.
Kular v. Foot Locker Retail, Inc.
168 Cal. App. 4th 116 (2008)
Proof of fairness of a class action settlement requires information not protected by mediation confidentiality.
Furia v. Helm
111 Cal. App. 4th 945 (2003)
Do not be the mediator for your own client. Counsel represented homeowners prior to a dispute with their contractor, then agreed to act as a neutral to resolve the issues. He disclosed the obvious conflict to all parties, but separately advised his clients that he would not be completely neutral. The case was a legal malpractice case, and the court found that although there was no attorney-client relationship between the plaintiff and mediator, there must still have been complete disclosure of all facts and circumstances which may influence a party's choice of neutrals. The underlying demurrer was sustained on causation grounds, but the court clearly admonished the mediator/counsel and described potential liability under the right causation circumstances.
Wackeen v. Malis
97 Cal.App. 4th 429
A written settlement agreement did not contain language evidencing a clear request for the court to retain jurisdiction to enforce the terms of the settlement. (CCP section 664.6) Consequently, relief must be sought by means of a timely separate action.