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Posted on January 12, 2014 in Mediation

California Evidence Code Sections Related to a Mediation Privilege that Keeps Divorce Talks Silent

§703.5 “No mediator is competent to testify.”
§1115[a] Definition of Mediation: A neutral person facilitates communication.
§1115[b] A Mediator is a neutral who conducts mediation.
§1115[c] Mediation consultation is a broad definition including intake communications.
§1119 Mediation privilege written in oral communication inadmissible.
§1119[a] Nothing said in mediation is discoverable or admissible in evidence.
§1119[b] No writing prepared for mediation is admissible or subject to discovery.
§1119[c] All communications, negotiations, and discussions are confidential in mediation.
§1120 Evidence admissible or subject to discovery outside mediation is not inadmissible because of the mediation.
§1121 No mediator’s report or findings may be submitted to the Court.
§1122 Communications and writings may be admissible if the parties agree in writing.
§1123 Business settlement agreements prepared in mediation may be disclosed if the agreement is enforceable or binding or words to that effect; or the parties agree in writing; or the agreement is used to show fraud, duress, or illegality that is relevant to an important issue.
§1124 An oral agreement from mediation is not made inadmissible if, in accordance with §1118: the oral agreement is recorded by a court reporter, tape recorder or other, the terms are recited on the record, the parties express on the record they agree to the terms recited, the parties state on the record the agreement is enforceable, the recording is reduced to a writing signed by the parties within 72 hours.
§1125 Mediation ends when:

  1. Parties have a written settlement agreement.
  2. An Oral agreement resolves the dispute.
  3. Mediator terminates mediation in writing.
  4. Either party sends a written termination notice.
  5. For 10 days there is no communication between the Mediator and the parties.NOTE: Parties may execute a partial written settlement, an oral agreement may partially resolve the dispute per §1118, either party may end mediation without an agreement.
§1126 Protection before and after mediation: anything said or any writing is inadmissible and protected from disclosure before mediation ends and to the same extent after mediation ends.
§1127 A person who erroneously subpoenas or tries to get a mediator to testify or produce writing is subject to an award of reasonable attorneys fees in favor of the mediator.
§1128 Any reference to mediation during a subsequent proceeding is grounds for vacating or modifying the decision in that proceeding.
§1152 Offers to compromise are privileged.
§1152[a] All settlement discussions and offers are privileged.

In addition to all this good law, please keep in mind the California Supreme Court decision of Rojas in 2004, which held that anything prepared for the purpose of mediation is also privileged. The results of mediation are to be upheld by the courts. The recent appellate court case of Kieturakis in 2006 held that the presumption of undue influence in agreements between spouses must yield to the interests of finality in mediation.

What have you got to lose? If the discussions fall through, no harm, no foul. Nothing can be said later about the process. If the discussions are successful, and your mediation is formalized in a marital settlement agreement, you can even agree upon the extent to which that is revealed in a court file that is open to the public or kept secret between you and the spouse.

Mediation begins with an appointment for a first consultation. During that consultation you will lean how to effectively make disclosure and how to keep your case out of court. The cost of that consultation is just $150.00.

Call 858-974-4900 now to make your appointment.