When it comes to alternative dispute resolution (ADR), the concept of mediation privilege in California stands out as a cornerstone of the settlement process.

This is particularly the case in the Golden State, where mediation is integral to the legal framework; understanding this privilege is crucial for lawyers and paralegals alike.

As any legal professional knows, mediation often involves sensitive discussions and negotiations. The protection offered by mediation privilege ensures that these discussions remain confidential, fostering an environment where parties can openly negotiate and seek resolution.

This article aims to demystify the mediation privilege in California, offering a comprehensive understanding of its legal basis, practical implications, and how it compares to federal standards.

Legal definition and scope of mediation privilege in California

At its core, the mediation privilege is a legal principle that protects all communications during a mediation process from disclosure in court or other legal proceedings.

This privilege is designed to encourage candidness and openness in mediation by assuring parties that their discussions, proposals, and admissions during mediation cannot be used against them in court.

In California, this privilege is not just a customary practice but a well-established legal standard rooted deeply in the state’s statutory framework.

Applicable statutes  in California

California Evidence Code sections 703.5 and 1115 to 11128 provide a comprehensive legal foundation for the state’s mediation privilege. These statutes define the scope of the privilege, including what constitutes a mediation communication and who is considered a participant in a mediation.

According to these provisions, mediation communications encompass all statements, whether written or oral, made in the course of a mediation. It’s important to note that this privilege extends to communications made in preparation for mediation as well.

One key aspect of California’s mediation privilege is its breadth. Unlike some other forms of privilege, the protection in California extends not just to the parties directly involved in the mediation but also to mediators, any non-party participants, and even to communications made in private sessions during the mediation process.

The most salient aspect of the mediation privilege is that, generally speaking, any communication made in the context of mediation (including settlement offers and other sensitive information) cannot later be used against a party in a court of law.

This is a critical protection as parties to mediation will often make generous settlement offers in an attempt to simply end expensive litigation, and not as an admission of guilt.

Nonetheless, if these communications were allowed into evidence at trial, they might give a jury the impression that the offering party was somehow at fault in the underlying dispute.

Distinctions from other legal privileges

The mediation privilege, while similar in purpose to other legal privileges, such as attorney-client privilege, has distinct characteristics.

Unlike attorney-client privilege, which is primarily concerned with protecting the confidentiality of communications between a client and their attorney, mediation privilege covers a broader range of participants and types of communications. Additionally, the mediation privilege differs from the attorney-client privilege in that it cannot be unilaterally waived.

This distinction underscores the uniqueness and importance of mediation as a process and the necessity of a comprehensive privilege to protect it. If you think about it, if this privilege did not exist, it is highly unlikely that any mediation would ever be successful.

Parties would simply be too afraid to engage in meaningful negotiations for fear that anything they said (or offered) within the context of ADR would be thrown in their face at a later trial once the other side decided to waive the privilege.

Limitations and boundaries

It is often said that there are “virtually no exceptions” to the mediation privilege in California. This is not entirely true, however.

Despite its broad scope, mediation privilege in California does have limitations. For example, California Evidence Code section 1123(d) deems any agreement reached in mediation to be admissible in a later trial if “[t]he agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.”

It’s critical for lawyers to understand these types of exceptions in order to appropriately advise their clients, analyze the viability of settlement offers, and to ensure the integrity of the mediation process.

Comparative analysis with Federal standards

One critical aspect of understanding mediation privilege in California involves comparing it with the federal standards, particularly considering Federal Rule of Evidence 408.

This comparison highlights the nuanced differences and similarities between state and federal approaches to mediation-related communications.

Federal Rule of Evidence 408

Federal Rule of Evidence 408 primarily addresses the admissibility of evidence related to compromise and settlement negotiations.

According to this rule, evidence of furnishing, offering, or accepting a valuable consideration during these negotiations is generally not admissible to prove or disprove the validity or amount of a disputed claim. Importantly, this includes conduct or statements made during these compromise negotiations.

There are significant exceptions to the Federal Rule, however. Specifically, Federal Rule of Evidence 408(b) allows evidence of settlement negotiations to be used for purposes other than proving the validity of the claim; like proving bias, negating a contention of undue delay, or in the context of criminal investigations.

Comparison with California’s mediation privilege

While Federal Rule of Evidence 408 and California’s mediation privilege both aim to protect the confidentiality of negotiation communications, their scopes and applications differ.

California’s mediation privilege is broader, extending beyond just the admissibility of compromise negotiations. It encompasses all communications made in the course of mediation, including preparatory communications and those involving a wider range of participants.

Moreover, the exceptions in Federal Rule 408 allow for the use of negotiation-related evidence in certain circumstances, which is more restrictive than the almost absolute nature of California’s mediation privilege.

In California, the exceptions to mediation privilege are relatively narrow and specific, focusing primarily on settlement agreements that evidence a plan to commit a crime or perpetrate fraud.

Hypothetical examples illustrating the power of California’s mediation privilege

In order to understand the true power of this privilege, let’s consider a few examples of how this principle might play out in different types of litigation:

Scenario 1: Business contract dispute

Context: Two businesses, Company A and Company B, are in a dispute over a breach of contract. They opt for mediation to resolve the issue.

During mediation: During the mediation session, the CEO of Company A, in an effort to reach a settlement, admits that they knowingly violated a key term of the contract, thinking it would not be discovered.

After mediation: The mediation fails to produce an agreement, and the case proceeds to trial.

Inadmissibility at trial: In court, Company B attempts to introduce the CEO’s admission as evidence. However, the court rules that this admission, made during the mediation process, is protected under California’s mediation privilege and thus inadmissible in the trial.

Scenario 2: Personal injury case 

Context: An individual sues a company for personal injuries sustained due to a defective product.

During mediation: During the mediation, the parties reach a settlement agreement. In this agreement, the company offers a substantial financial settlement, but under the condition that the individual must publicly state that the injury was not caused by the product and must also provide false testimony to regulatory bodies investigating the product’s safety.

After mediation: The individual, feeling pressured and unsure, initially agrees to the terms but later decides to challenge the settlement, claiming it was agreed upon under duress and involved in illegal activities.

Admissibility at trial: The company attempts to enforce the settlement agreement, citing the mediation confidentiality. However, the Plaintiff’s attorney argues that the agreement was made under duress and involved illegal activities (providing false testimony).

Court ruling: The court examines the nature of the agreement reached during mediation. It finds that the terms of the agreement involved committing fraudulent acts and were agreed upon under duress. According to California Evidence Code 1123, agreements made under such conditions can be exempt from mediation confidentiality. As a result, the court rules the agreement admissible as evidence at trial and invalidates it on the grounds of fraud and duress.

In this scenario, the exception to mediation confidentiality under California Evidence Code 1123 is pivotal. It demonstrates that while the law protects the confidentiality of mediation, it does not allow this privilege to shield agreements that are rife with ill intent. This ensures a fair and lawful use of the mediation process.

Scenario 3: Employment dispute

Context: An employee files a lawsuit against their employer for wrongful termination.

During mediation: During the mediation, the employer admits to terminating the employee due to their age, hoping to reach a quick settlement.

After mediation: The case eventually goes to trial as a settlement isn’t reached.

Inadmissibility at trial: The employee’s lawyer tries to use the employer’s admission from the mediation session as evidence. However, the court disallows it based on California’s mediation privilege, which safeguards communications made during mediation.

In each of these scenarios, California’s mediation privilege plays a pivotal role in ensuring that statements made in the spirit of compromise and resolution during mediation are not used against the parties in court.

This protection allows for a more open, honest dialogue during mediation, which is fundamental to the effectiveness of the mediation process.


California’s mediation privilege, deeply entrenched in statutory law, is a cornerstone of alternative dispute resolution. Defined by Evidence Code sections 703.5 and 1115 to 11128, it safeguards all mediation communications from disclosure, fostering candid negotiations.

Unlike some legal privileges, it extends broadly to mediators, non-participants, and private sessions. While virtually comprehensive, exceptions exist, such as those outlined in section 1123(d), ensuring nuanced legal counsel.

Compared to Federal Rule of Evidence 408, California’s approach emphasizes almost absolute confidentiality, underscoring its unique and pivotal role in promoting trust and transparency in mediation processes.

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