California Evidence Code Section 1129
A new California law effective January 1, 2019, Evidence Code Section 1129 requires attorneys who represent a client in a mediation to timely provide a written disclosure concerning the confidentiality restrictions in Evidence Code § 1119. The attorney must obtain the client’s written acknowledgment that he or she understands the restrictions. Both attorney and client must sign a printed Mediation Disclosure Notification and Acknowledgment form as specified in Section 1129. The new law also modified Section 1122 to allow restricted disclosure of writings related to an attorney’s compliance with Section 1129.
Click here to read about the background of this new law on the California Legislature’s website.
Evidence Code Section 1129(d) provides “safe harbor” language for the Mediation Disclosure Notification and Acknowledgment form. For convenience, we are providing a form with the exact language as set forth in Section 1129(d) to comply with the substantive and formatting requirements of this law.
Below is the full text of Evidence Code Sections 1122 and 1129.
§ 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 any of the following conditions are 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.
(3) The communication, document, or writing is related to an attorney’s compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.
(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.
§ 1129. Confidentiality restrictions; client disclosure and acknowledgment requirements; requirements for printed disclosure form; effect of noncompliance
(a) Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.
(b) An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in subdivision (a).
(c) The printed disclosure required by subdivision (a) shall:
(1) Be printed in the preferred language of the client in at least 12-point font.
(2) Be printed on a single page that is not attached to any other document provided to the client.
(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.
(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a):
Mediation Disclosure Notification and Acknowledgement
To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:
- All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
- Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
- A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
- A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.
This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.
I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
__________________________________________ __________________________________________ [Name of Client] [Name of Attorney] [Date signed] [Date signed]
(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.
– If all of the parties have agreed to mediation, please call or e-mail to arrange a date and time. Include the names and contact information for all participants. We will also need to discuss how much time to allocate for your mediation session (e.g., half day or full day). If you need assistance with encouraging other parties to agree to mediation, we can help with that process.
Pre-Mediation Telephone Calls
– After deciding that mediation is appropriate, and you have scheduled your session, you are encouraged to call and discuss any issues relating to the mediation. Your communications are, of course, confidential.
– Confidentiality in mediation is crucial. All participants will be required to execute an agreement that, among other things, preserves confidentiality.
– A satisfactory settlement is most likely to be achieved when all parties and all decision-makers personally appear at the mediation. However, each case is different. Some clients may be out of state or otherwise unavailable. If a party wants to participate by telephone, their counsel should contact opposing counsel in order to obtain prior consent.
Mediation Briefs and Advance Preparation
Counsel are strongly encouraged to submit mediation briefs, although they are not required. By submitting a mediation brief, time will be saved at the mediation session and advance preparation time is more effective. Briefs should include:
- The operative facts of the case, the parties’ legal positions;
- the details of the relief sought;
- the history of any settlement discussions;
- copies of any key documents, and
- any other information you believe would be helpful.
Briefs may be exchanged or submitted in confidence. Mediation briefs of 15 pages or less including exhibits and/or pertinent legal authority can be e-mailed or faxed. Anything larger than 15 pages should be mailed. Briefs should be submitted at least two business days in advance of the scheduled mediation session for proper and timely review.Resolving preliminary issues such as damage calculations in advance will save considerable time at the mediation. It is also efficient and valuable to prepare draft settlement agreements in advance to bring to the mediation.
– Mediations may be held at counsel’s offices or at a neutral venue secured by Rande Sotomayor throughout Southern California.