Confidentiality is one of the hallmarks of mediation in California. But when does a mediation end such that communications may no longer be confidential?
California Evidence Code §1125 provides, in pertinent part, as follows:
(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.
Hopefully, your matter resolves on the day of the mediation. But if the matter does not settle, in most cases, the mediator or the parties do not provide a writing indicating that the mediation is terminated. Accordingly, more often than not, §1125(a)(5) comes into play and the mediation and confidentiality is automatically terminated after 10 calendar days where there is no communication between the mediator and any of the parties. This may be the result without the parties or their counsel giving it any thought.
However, it may be beneficial for the parties and their counsel to consider at what juncture they wish the mediation to end such that confidentiality no longer applies. For example, the parties may desire the mediation process to continue after the day of mediation for a defined period of time, or even indefinitely until one or more parties terminates the mediation. In that case, following the mediation, the parties might enter an agreement waiving the automatic termination provision of §1125(a)(5) and specifying the terms upon which the mediation will continue such that subsequent communications between or amongst the participants and the mediator will remain confidential.
On the other hand, one or both parties may want to terminate the mediation and confidentiality on the date of the mediation. Accordingly, a party may wish to provide the mediator and the opposing party with a writing terminating the mediation pursuant to §1125(a)(4).
Of course, the parties may decide to simply allow the 10-day automatic termination provision of §1125(a)(5) to run its course.
Whatever the preferred course of action, the various alternatives definitely merit consideration as you proceed forward.