2009 California Evidence Code - Section 1115-1128 :: Chapter 2. Mediation

EVIDENCE CODE
SECTION 1115-1128

1115.  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) "Mediator" 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.

1116.  (a) Nothing in this chapter expands or limits a court's
authority to order participation in a dispute resolution proceeding.
Nothing in this chapter authorizes or affects the enforceability of a
contract clause in which parties agree to the use of mediation.
   (b) Nothing in this chapter makes admissible evidence that is
inadmissible under Section 1152 or any other statute.

1117.  (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
3160) of Part 2 of Division 8 of the Family Code.
   (2) A settlement conference pursuant to Rule 3.1380 of the
California Rules of Court.

1118.  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 or reliable
means of audio 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.

1119.  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 given.
   (c) All communications, negotiations, or settlement discussions by
and between participants in the course of a mediation or a mediation
consultation shall remain confidential.

1120.  (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 contacted about serving as a mediator in
a dispute.

1121.  Neither a mediator nor anyone else may submit to a court or
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.

1122.  (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.

1123.  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
that is relevant to an issue in dispute.

1124.  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.

1125.  (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.

1126.  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.  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 or 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.  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 or further hearing on all or
part of the issues, if the reference materially affected the
substantial rights of the party requesting relief.


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