California Evidence Code section 1115, together with the sections that follow it, creates one of the strongest mediation confidentiality shields in the country: once a dispute qualifies as a “mediation” under section 1115’s definitions, almost everything said, written, or exchanged during the process is locked out of any later civil case. That protection lets parties negotiate candidly, but it also carries consequences many people don’t see coming, including the near-impossibility of suing your own attorney over what happened in the room.
What Counts as a Mediation Under Section 1115
Section 1115 is the trigger. It defines three terms, and whether confidentiality attaches to a given conversation depends on whether that conversation fits one of them.1California Legislative Information. California Code Evidence Code 1115 – Definitions
- A mediation is a process in which a neutral person helps disputing parties communicate and work toward a mutually acceptable agreement.
- A mediator is the neutral conducting the mediation, along with anyone the mediator designates to assist or to communicate with participants in preparation for it.
- A mediation consultation is any communication with a mediator for the purpose of starting, considering, resuming, or hiring a mediator for a mediation.
That third definition is the one most people underestimate. Confidentiality doesn’t wait for a formal session to begin. The initial phone call to a prospective mediator already counts as a mediation consultation, and anything said during it is protected.
What the Confidentiality Actually Covers
Section 1119 does the heavy lifting. Nothing said and no admission made during a mediation or mediation consultation can be used as evidence, obtained through discovery, or compelled into disclosure in any civil proceeding, arbitration, or administrative hearing. The same rule covers every writing prepared for the mediation, whether it is a draft proposal, a set of handwritten notes, or an internal spreadsheet built for the negotiation. Communications and settlement discussions among participants stay confidential.2California Legislative Information. California Evidence Code 1119
The breadth is deliberate. The Legislature wanted parties to speak freely, and it accomplished that by making mediation communications essentially untouchable in anything that comes after.
When It Starts and When It Ends
Protection attaches the moment the parties agree to mediate or first communicate with a mediator about hiring one. Section 1125 then spells out when a mediation ends for confidentiality purposes. A mediation that fully resolves the dispute ends when any of these happens:3California Legislative Information. California Code Evidence Code 1125
- The parties sign a written agreement that fully resolves the dispute.
- The parties reach an oral agreement that fully resolves the dispute, recorded in compliance with section 1118.
- The mediator gives participants a signed writing stating the mediation is over.
- A party gives written notice to the mediator and all other participants that the mediation is over. In multi-party cases, the remaining participants may continue.
- Ten calendar days pass with no communication between the mediator and any party about the dispute. The parties and mediator can agree to shorten or extend that window.
If a mediation only partially resolves the dispute, it ends as to the resolved issues when the parties sign a partial written settlement or reach a partial oral agreement under section 1118. A party may walk away at any time without reaching a deal. And critically, the confidentiality attached to what was said during the mediation survives after the mediation itself ends.
Where It Doesn’t Apply
Not every process that looks like mediation is covered. Section 1117 carves out two situations. The confidentiality chapter does not apply to certain Family Code proceedings, including child custody evaluations and related family mediation processes. It also does not apply to judicial settlement conferences held under the California Rules of Court.4California Legislative Information. California Evidence Code 1117 If you’re walking into either of those, different disclosure rules govern what happens afterward.
Making a Settlement Enforceable Afterward
Here is where parties most often get hurt by confidentiality. The same rules that protect your negotiation would, by default, prevent a court from ever looking at the deal you reached. Sections 1123 and 1124 fix this, but only if you follow their requirements precisely.
Written Agreements
A written settlement prepared during mediation becomes admissible if the settling parties sign it and the document meets at least one of these conditions:5California Legislative Information. California Evidence Code 1123
- It states that it is admissible or subject to disclosure.
- It states that it is enforceable or binding.
- All parties expressly agree to its disclosure.
- It is used to show fraud, duress, or illegality relevant to the dispute.
The statute allows “or words to that effect,” but courts read that phrase strictly. Vague or ambiguous language is a common reason agreements fail at the enforcement stage.
Oral Agreements
Oral settlements have a tougher road. To become admissible under section 1118, all of the following must happen:6California Legislative Information. California Evidence Code 1118
- A court reporter or reliable audio recording captures the agreement.
- The terms are recited on the record with the parties and mediator present, and each party confirms agreement on the record.
- The parties state on the record that the agreement is enforceable or binding.
- The recording is reduced to writing and signed by the parties within 72 hours.
Section 1124 provides limited alternatives. If the recording, recitation, and 72-hour signing requirements were met but the parties did not state on the record that the agreement is enforceable, the agreement can still come in if all parties separately agree to disclose it, or if it is offered to prove fraud, duress, or illegality.7California Legislative Information. California Code Evidence Code 1124 Miss a step and your settlement may be unenforceable.
The Narrow Exceptions
A handful of exceptions keep the confidentiality rule from swallowing more than it should.
Pre-existing evidence. Section 1120 confirms that evidence you could have used in court before the mediation does not lose that status just because someone brought it into the mediation room. A financial document created months before the dispute began remains admissible and discoverable even if a party handed it to the mediator. The rules protect communications and writings created for the mediation, not documents that independently exist.8California Legislative Information. California Evidence Code 1120
Consent of everyone involved. Section 1122 allows disclosure if every participant expressly agrees, either in writing or orally under section 1118’s recording rules. “All participants” includes the mediator, and the mediator’s agreement also binds any assistants the mediator designated.9California Legislative Information. California Code Evidence Code 1122
References during later proceedings. Section 1128 treats any reference to a mediation during a subsequent trial as a trial irregularity under Code of Civil Procedure section 657. In other noncriminal proceedings, a reference to the mediation is grounds for vacating or modifying the decision if it materially affected a party’s substantial rights.10California Legislative Information. California Evidence Code 1128 Even a casual mention that a mediation took place can jeopardize the outcome of a later proceeding.
What Your Attorney Must Tell You First
Because parties kept walking into mediation without grasping how severely confidentiality would restrict them afterward, the Legislature added section 1129. Before you agree to participate in a mediation, your attorney must give you a printed disclosure that explains the restrictions in section 1119 and must obtain your signed acknowledgment that you have read and understand them.11California Legislative Information. California Evidence Code 1129
The form has specific requirements: your preferred language, at least 12-point font, a single standalone page not stapled to other documents, signed and dated by both you and your attorney. If your attorney is hired after you’ve already agreed to mediate, the disclosure has to come as soon as reasonably possible after the attorney is retained.
The statute includes a safe-harbor form that automatically satisfies the requirement when used. That form carries a pointed warning you should actually read: communications between you and your attorney made in preparation for or during a mediation are confidential and cannot be disclosed or used, even if you later sue your attorney for malpractice over something that happened during the mediation. Documents about whether your attorney complied with section 1129 can be used in State Bar disciplinary proceedings without violating confidentiality.
The Trade-Off: No Malpractice Carve-Out
That warning on the 1129 form is not boilerplate. In Cassel v. Superior Court, the California Supreme Court held that section 1119 bars all communications made during or in connection with a mediation from being used in later proceedings, including private conversations between a client and the client’s own attorney that no one else heard.12Stanford Law School. Cassel v. Superior Court, 51 Cal. 4th 113 The practical effect: if your lawyer pressures you into a bad settlement, gives you poor advice about the strength of your case, or misrepresents what the deal says, you generally cannot use what was said during the mediation to prove it in a malpractice case.
The court recognized the competing policies but said carving out an exception was the Legislature’s job, not the judiciary’s. As of now, the Legislature has not created one. The response was section 1129’s informed-consent requirement, which at least ensures you know the limitation before you walk into the room. Treat the confidentiality protection as cutting both ways: it shields your candid admissions from the other side, and it shields your attorney from accountability for conduct inside the process.
If Your Case Could End Up in Federal Court
Federal Rule of Evidence 408 governs settlement negotiations in federal court and offers narrower protection than California’s framework. Rule 408 prohibits using settlement offers or statements made during negotiations to prove or disprove the validity or amount of a disputed claim.13Legal Information Institute. Federal Rule of Evidence 408 – Compromise Offers and Negotiations But federal courts can admit the same evidence for other purposes, such as showing a witness’s bias, negating a claim of undue delay, or proving obstruction of a criminal investigation.
California’s section 1119 blocks mediation evidence no matter why a party wants to use it. A statement protected under California law might come in through the back door in federal court if the purpose falls outside Rule 408’s prohibited uses. Whether state or federal confidentiality rules apply in a given federal case depends on the nature of the underlying claims, so raise it with your attorney early if federal jurisdiction is on the table.