The mediation privilege: A sword and a shield

California has an "extensive statutory scheme governing mediation confidentiality and its exceptions." (Simmons v. Ghaderi (2008) 44 Cal. 4th 570, 578.) This colloquially named "mediation privilege" reflects the legislature's determination that "confidentiality is essential to mediation." (Foxgate Homeowners' Ass'n, Inc. v. Bramalea California, Inc. (2011) 26 Cal. 4th 1, 9.)

Evidence Code sections 1115, et seq. define the scope of California's mediation privilege, and Evidence Code section 1119 contains the operative language. In subsection (a), it provides that "[n]o 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[.]" In subsection (b), it explains that "[n]o 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[.]" Finally, subsection (c) provides that "[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

Because the mediation privilege is draconian and strictly enforced, Evidence Code section 1129 requires lawyers to provide their clients "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." While that code section does not provide a consequence for lawyers who fail to comply, conceivably a violation could give rise to a claim under Business & Professions Code section 17200.

What counts as a mediation? Evidence Code section 1115(a) explains that the mediation privilege applies to any "process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement" (although Evidence Code section 1117 carves out mandatory settlement conferences from the mediation privilege).

Evidence Code section 1125 makes clear that mediation ends when the parties enter into a settlement agreement that fully or partially resolves the dispute, or the mediator provides a written statement that the mediation is over, or one of the parties terminates the mediation, or if there is "no communication between the mediator and any of the parties to the mediation related to the dispute" for ten days.

However, there is no clear answer on when a mediation begins for privilege purposes. Evidence Code section 1115 and 1119, read together, explain that the mediation privilege extends to mediation consultations--which means "a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator." And Evidence Code section 1115 explains that the privilege applies to admissions and writings "made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation[.]" These statutes are broadly construed, and likely mean that communications and writings related to mediation fall within the scope of the privilege, even if the mediation hasn't started. (See, e.g., Cassel v. Superior Ct. (2011) 51 Cal. 4th 113, 128 ("All oral or written communications are covered, if they are made 'for the purpose of' or 'pursuant to' a mediation. It follows that, absent an express statutory exception, all discussions conducted in preparation for a mediation, as well as all mediation-related communications that take place during the mediation itself, are protected from disclosure. Plainly, such communications include those between a mediation disputant and his or her own counsel, even if these do not occur in the presence of the mediator or other disputants.") (Cleaned up.))

That issue (i.e., how the mediation privilege applies to pre-mediation communications and writings) was at the center of a recent decision by the California Court of Appeal for the Sixth District, captioned Beach v. Johnson, Rovella, Retterer, Rosenthal & Gilles, LLP (Apr. 3, 2025, H051523) __ Cal.App.6th __ [2025 WL 1000402] (hereinafter, "Beach v. Johnson").

There, a client (Beach) sued his former law firm (Johnson) for negligence arising out of allegedly bad advice that the law firm gave him in a mediation preparation meeting. Beach alleged that Johnson advised him that if he agreed to a $2 million settlement at mediation, he could purchase an annuity that would pay him about $10,000 per month for the rest of his life. Beach alleged that he relied on that advice in reaching a $2 million settlement at mediation, and only learned after that Johnson's advice about the annuity was incorrect.

Beach sued Johnson for malpractice, but the trial court granted summary judgment for Johnson and found that Beach could not establish the causation element of his malpractice claim, because the mediation privilege rendered evidence of Johnson's allegedly bad advice inadmissible. Beach appealed.

In a unanimous decision, the appellate court affirmed the trial court's summary judgment order. Citing Cassel v. Superior Ct. (2011) 51 Cal. 4th 113, 135, the appellate court explained that "[c]ommunications between counsel and client that are materially related to the mediation, even if they are not made to another party or the mediator, are 'for the purpose of' or 'pursuant to' mediation." (Id. at *2) So, it held that because Johnson's advice was "materially related to the mediation," evidence of that advice was barred by the mediation privilege. (Id. at *2) The appellate court "recognize[d] the inequity of this result on the undisputed facts" and "acknowledge[d] the plight Beach describes" but held it was "bound by Cassel. And Cassel forecloses Beach's claims of error." (Id. at *2, cleaned up)

The takeaway from Beach v. Johnson is that even where the undisputed facts show that a lawyer fell below the standard of care in giving mediation-related advice, the mediation privilege bars the admissibility of that evidence in a subsequent malpractice case.

Beach v. Johnson tees up two related questions about the scope of the mediation privilege. First, is the fact that a lawyer did not give a client certain advice during mediation admissible in a subsequent malpractice case? In Amis v. Greenberg Traurig LLP (2015) 235 Cal. App. 4th 331, 333, the California Court of Appeal for the Second District, Division 3 said no. It held that evidence of a lawyer's omissions during mediation was not admissible and reasoned that admitting evidence of omissions "would turn mediation confidentiality into a sword by which [a client] could claim he received negligent legal advice during mediation, while precluding [the lawyer] from rebutting the inference by explaining the context and content of the advice that was actually given." (Id. at 342)

Second, is a party's unexpressed mental state and expectations during mediation admissible? This is an open question, but such evidence may be admissible. In Foxgate Homeowners' Ass'n, Inc. v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, 18 fn. 14, the California Supreme Court explained that "neither section 1119 nor section 1121 prohibits a party from revealing or reporting to the court about noncommunicative conduct[.]" So, a creative lawyer may be able to persuade the court that a party's unexpressed mental state and expectations during mediation are inherently noncommunicative and therefore admissible.