Mediation Confidentiality in California: What You Can and Cannot Use From a Mediation

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

Mediation confidentiality is the California rule, in Evidence Code section 1119, that what is said or written for a mediation cannot be used in a later civil case. Statements, admissions, and writings made for the purpose of, in the course of, or pursuant to a mediation are neither admissible nor subject to discovery. If the other side admitted a mistake during mediation, you cannot tell the judge what was said. Evidence that exists independently of the mediation remains usable. Kolmogorov Law, P.C. represents companies and their owners in business disputes.

Call (909) 235-6116 or contact us online to discuss a mediation that is coming up or one that did not settle.

What the statute reaches

Our page on business mediation explains the process and the basic rule.

Section 1119 protects statements and admissions, writings, and the participants' communications generally. It applies in civil actions, arbitrations, administrative adjudications, and other noncriminal proceedings. (Evid. Code, § 1119.) A mediator includes anyone the mediator designates to assist or to communicate with the participants in preparation. A mediation consultation, which is protected the same way, is a communication with a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator. (Evid. Code, § 1115, subds. (b), (c).)

A settlement conference held under the court rule the statute names is not a mediation for these purposes. (Evid. Code, § 1117, subd. (b).) Statements there fall under the narrower rule for settlement negotiations.

No exception for a good reason

The California Supreme Court has refused to soften the statute. In one case, a party sought sanctions for its opponent's conduct at a court-ordered mediation and supported the motion with the mediator's report. The court held that no judicially crafted exception exists. A party may tell the court about conduct that is not a communication, such as a failure to attend. It may not reveal what was said, and the court may not consider a mediator's report of it. (Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1.)

A statement of fault made in the room is therefore protected, even when it is true.

Documents: protected and not protected

A later decision concerned documents: photographs, written witness statements, and recorded analyses of test samples are protected writings if they were prepared for the purpose of, in the course of, or pursuant to a mediation. There is no good cause exception of the kind that applies to attorney work product. (Rojas v. Superior Court (2004) 33 Cal.4th 407.)

Evidence that is otherwise admissible or discoverable does not become protected solely because it was introduced or used in a mediation. (Evid. Code, § 1120, subd. (a).) The court drew three lines. A writing not prepared for the mediation gains no protection by being attached to a mediation brief. Facts known to witnesses can still be asked about. Physical samples are not writings at all. (Rojas, supra, 33 Cal.4th 407.)

A damages analysis commissioned for the mediation cannot be forced out of you, but you may not be free to use it later either. Material prepared by or for fewer than all the participants may be disclosed if those participants expressly agree, in writing or orally under the recorded procedure described below, and it reveals nothing said or done in the mediation. Other material generally requires the same express agreement from everyone who conducted or took part in the mediation. (Evid. Code, § 1122, subd. (a).)

When a mediation ends

For confidentiality purposes a mediation ends when any one of five things happens.

The parties sign a written settlement agreement that fully resolves the dispute.
An oral agreement that fully resolves the dispute is reached under the statutory procedure.
The mediator gives the participants a signed writing stating that the mediation is terminated.
A party gives the mediator and the other participants a writing saying the same.
For 10 calendar days there is no communication between the mediator and any party relating to the dispute.

The mediator and the parties may shorten or extend the 10 days by agreement. A partial settlement, signed or recorded the same way, also ends the mediation. With more than two parties, one party's notice may leave the mediation running among the rest. (Evid. Code, § 1125, subds. (a), (b).)

What was protected stays protected after the end. (Evid. Code, § 1126.) A settlement email sent three weeks after a failed session, with the mediator no longer involved, may not be a mediation communication at all. If talks are continuing, keep the mediator in them or agree with the mediator and the other parties to extend the 10 days.

Oral deals and other settlement traps

A written settlement signed at mediation can be used in court if it meets one of the statutory conditions, which the business mediation page explains. An oral agreement faces a stricter test. Under the main route, it must be recorded by a court reporter or reliable audio recording. Its terms must be recited on the record in front of the parties and the mediator, and the parties must state on the record that they agree and that the agreement is enforceable or binding. The recording must then be reduced to a writing that the parties sign within 72 hours. (Evid. Code, §§ 1118, 1124, subd. (a).) Two narrower routes drop the binding statement but add other conditions. (Evid. Code, § 1124, subds. (b), (c).) A handshake in the hallway meets none of these conditions.

The mediator is not a witness, and a trial reference is an irregularity

A mediator is not competent to testify in a later civil proceeding about statements or conduct at the mediation. The exceptions include statements or conduct that could constitute a crime or give rise to contempt. (Evid. Code, § 703.5.) A party that tries to compel a mediator's testimony or writings must pay the mediator's reasonable attorney's fees and costs if the court finds the material inadmissible or protected under the mediation statutes. (Evid. Code, § 1127.)

By statute, any reference to a mediation during a later trial is an irregularity in the proceedings of the trial. In other noncriminal proceedings, a reference that materially affected a party's substantial rights is a ground to vacate or modify the decision. (Evid. Code, § 1128.)

What to bring to the first meeting

The mediation agreement and any confidentiality terms the mediator circulated.
The briefs and exhibits each side submitted, marked to show which documents were not prepared for the mediation.
Any term sheet, settlement draft, or recording made at the session.
All communications with the mediator and the other side since the session, with dates.
A description of what you want to use, and where it came from.

Frequently asked questions

The other side admitted the mistake during mediation. Can I tell the judge what they said?

No. California Evidence Code section 1119 makes anything said, and any admission made, in the course of a mediation inadmissible and not subject to discovery in a later civil case. The California Supreme Court has refused to create exceptions, even for a motion accusing a party of misconduct at the mediation. You may still prove the underlying mistake with evidence that exists outside the mediation.

What does Evidence Code 1119 protect?

Three things, in a California civil case, arbitration, or other noncriminal proceeding. Statements and admissions made for the purpose of, in the course of, or pursuant to a mediation are inadmissible and undiscoverable. So are writings prepared for those purposes. And all communications, negotiations, and settlement discussions between participants remain confidential. A consultation with a mediator about starting a mediation is covered too.

When does a mediation end for confidentiality purposes?

California Evidence Code section 1125 lists the events. A mediation ends when the parties sign a settlement that resolves all or part of the dispute, or when the mediator or a party gives written notice that it is terminated. In a multiparty mediation, the remaining parties may continue. It also ends when 10 calendar days pass with no communication between the mediator and any party about the dispute. Earlier communications stay protected.

We paid an engineer to prepare a report for the mediation. Can the other side get it in discovery, and can we use it later ourselves?

A report prepared for a California mediation is a protected writing under Evidence Code section 1119, so the other side cannot compel it. The engineer's underlying observations and any physical evidence are not protected. Your side may be able to release its own report under section 1122, by express written agreement, if it reveals nothing said or done at the mediation.

Can a mediator testify about what happened in mediation?

Generally no. California Evidence Code section 703.5 makes a mediator incompetent to testify in a later civil proceeding about statements or conduct at the mediation, with exceptions that include conduct that could be a crime or a contempt. If a court finds the mediator's testimony or writings protected by the mediation statutes, the party that sought them must pay the mediator's reasonable attorney's fees and costs.

Talk to a California civil litigation attorney

If you are preparing for a mediation, or want to know what can be used from one that has ended, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is a business litigation firm in Irvine, California.

This page provides general information about California law and is not legal advice. Outcomes depend on the communication, when it was made, and the court.