MEDIATION: SHOULD I BE CAREFUL WHAT I SAY?

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees.
~Kahlil Gibran

Under California law, anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation is confidential and cannot be later used in any non-criminal action (Evidence Code §1119). What does that mean and why is that important?

Mediation is, essentially, a facilitated negotiation between parties. In divorce, it is between spouses. The purpose of the negotiation is to reach a settlement that avoids the cost and acrimony of a litigated dispute. There are many approaches to negotiating and the process may involve a lot of test balloons – ideas that are presented to see if there is interest. Many times, one of the parties may be reluctant to test the waters because of a fear that their position will later be used against them.

For that reason, mediations are protected by law from either party taking advantage of admissions, proposed agreements or other presentations offered in an attempt to find middle ground. A parent may reveal that they want equal parenting time because they heard it will affect the amount of child support they will pay. But, they also disclose that their job demands will keep them from being able to honor such a timeshare. If mediation breaks down, the other parent cannot introduce these statements in a later litigation. The idea is to build a safety net around discussions to encourage full disclosure and revelation of candid concerns.

This protection will not extend to information that could otherwise be discovered under formal rules of discovery, but the breadth and sanctity of the confidentiality rules is great. In a recent case, the California Supreme Court held that discussions with a client’s attorney could not be used by the client to sue their own attorney for malpractice. Clearly this was not the obvious intent of these protections, but demonstrates the lengths courts will go to in order to enforce the confidentiality of the mediation process.

In California, the wind of mediation is not allowed to reach the trees.



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