File Name:
In order to promote communication among the parties and the mediator and to facilitate settlement of the dispute, all parties agree that the mediator, and his law firm have no liability for any act or omission in connection with the mediation, that they have received and agree to the “Confidentiality” and “Conflicts Check” portions of the Mediation Procedures provided, and further agree as follows:
The mediator is a neutral intermediary who may not act as an advocate for any party. The mediator further agrees not to divulge substantive, confidential information to non-participants in this process.
All statements made during the course of the mediation are privileged settlement discussions, are made without prejudice to any party’s legal position, and are non-discoverable and inadmissible for any purpose in any legal proceeding.
The privileged character of any information is not altered by disclosure to the mediator. Disclosure of any records, reports, or other documents received or prepared by the mediator cannot be compelled. The mediator shall not be compelled to disclose or to testify in any proceeding as to (i) any records, reports, or other documents received or prepared by the mediator or (ii) information disclosed or representations made in the course of the mediation or otherwise communicated to the mediator in confidence.
No aspect of the mediation shall be relied upon or introduced as evidence in any arbitral, judicial, or other proceeding, including but not limited to:
(a) Views expressed or suggestions made by a party with respect to a possible settlement of the dispute;
(b) Admissions made in the course of the mediation proceedings; and
(c) Proposals made or views expressed by the mediator or the response of any party.
The parties further agree, however, that this Agreement does not apply to any executed settlement agreement and such settlement agreement may be introduced into evidence in any subsequent proceeding to enforce the terms of the settlement agreement.
Since the parties are disclosing sensitive information in reliance upon this agreement of confidentiality, any breach of this agreement would cause irreparable injury for which monetary damages would be inadequate. Consequently, any party to this agreement may obtain an injunction to prevent disclosure of any such confidential information in violation of this agreement.
Any party breaching this agreement shall be liable for and shall indemnify the non-breaching parties, and the mediator for all costs, expenses, liabilities, and fees, which may be incurred as a result of such breach.
California Evidence Code sections 1115 through 1128 (as amended, effective Jan. 1, 1998) shall apply to this mediation. A portion of those statues is set forth below.
(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 mediation, administrative adjudication, civil action, or other non-criminal 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, or pursuant to, a mediation or a mediation consultation, is admissible or subject discovery, and disclosure of the writing shall not be compelled, in any mediation, administrative adjudication, civil action, or other non-criminal 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.
Section 1127:
If a person subpoenas or otherwise seeks to compel an 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 in admissible 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:
Dated: _______________________, and signed before commencement of the mediation by each of the persons whose signature appears below.
Please print name: Signature:
_______________________________________ ____________________________________