California Evidence Code 1119: Scope, Exceptions, and Enforcement

California Evidence Code section 1119 makes almost everything said, written, or exchanged for a mediation confidential and inadmissible in any later noncriminal proceeding. That protection covers oral statements, admissions, writings prepared for the mediation, and all settlement discussions among participants. It also has real boundaries, and the boundaries are where most disputes about the statute actually land.¹

What Section 1119 Actually Shields

The statute blocks three categories of material from arbitrations, administrative hearings, civil lawsuits, and any other noncriminal proceeding where testimony can be compelled. Nothing said and no admission made during or in preparation for a mediation can be admitted as evidence or obtained through discovery. No writing prepared for the mediation is admissible or discoverable. And all communications, negotiations, and settlement discussions between participants stay confidential.¹

The protection is not optional. Courts cannot compel disclosure, and parties cannot force each other to testify about what happened in sessions. That is what lets a party float a lowball number, concede a weakness, or try an unconventional proposal without worrying it will resurface in a courtroom.

Note the word “noncriminal.” Section 1119 says nothing about criminal proceedings. If something said in mediation becomes relevant to a criminal investigation or prosecution, the statute does not shield it.

Confidentiality Starts Before the First Session

Protection does not wait for the formal mediation to begin. A “mediation consultation” under Section 1115 covers any communication between a person and a mediator for the purpose of starting, considering, or resuming a mediation, or retaining the mediator. The moment you contact a mediator to discuss using their services, that conversation is already protected.²

What Confidentiality Does Not Cover

Section 1120 draws the line that catches most people off guard: evidence that already existed before mediation does not become protected just because someone brought it to a session. A contract, a financial ledger, an email chain, a photograph — if it was admissible in court before the mediation, it stays admissible after. The confidentiality rule only shields material generated for the mediation itself.³

A handful of other things also remain disclosable: the fact that you agreed to mediate, procedural agreements such as not taking a default or extending a litigation deadline, the identity of the mediator, and declarations of disclosure required under Family Code sections 2104 and 2105 even when prepared during mediation.³

Making a Mediation Settlement Enforceable

This is the exception that most often decides whether a deal reached in mediation actually sticks. Confidentiality protects settlement discussions, which means it can also swallow the settlement itself if the paperwork is not handled correctly.

Written Agreements Under Section 1123

A written settlement agreement prepared during mediation escapes confidentiality only if the settling parties sign it and at least one of the following is true: the agreement states it is admissible or subject to disclosure, the agreement states it is enforceable or binding, all parties expressly agree to disclosure, or the agreement is used to show fraud, duress, or illegality relevant to a disputed issue.⁴

In practical terms: if you reach a deal and want a court to enforce it, put a sentence in the written agreement explicitly saying it is enforceable or binding, and get every settling party to sign. Without that language and those signatures, the agreement may remain locked behind confidentiality.

Oral Agreements Under Section 1118

Oral agreements can also survive the confidentiality bar, but only if they meet all four requirements of Section 1118. The agreement must be recorded by a court reporter or by reliable audio recording. The terms must be recited on the record with the parties and the mediator present, and the parties must confirm on the record that they agree. The parties must state on the record that the agreement is enforceable or binding. And within 72 hours, the recording must be reduced to writing and signed by the parties.⁵

That 72-hour window is where oral settlements most often fail. Parties leave a long session feeling relieved, let the paperwork slide, and later discover the oral agreement never qualified under Section 1118 and remains sealed by confidentiality.

Lifting Confidentiality by Agreement

Under Section 1122, any mediation communication or writing loses its protection if every person who participated in the mediation expressly agrees to disclosure, either in writing or through a recorded oral agreement meeting Section 1118’s requirements. A subset of participants can also agree to disclose a document they prepared, as long as it does not reveal anything said, done, or admitted during the mediation itself.⁶

The operative word is “all.” One party’s willingness to share means nothing if another participant objects. The mediator’s consent also counts, and when the mediator consents, that binds anyone the mediator designated to assist.

What the Mediator Can Tell the Court

Section 1121 puts a separate lock on reports back to judges. A mediator cannot submit any report, assessment, evaluation, recommendation, or finding about a mediation to a court or other adjudicative body, and the court cannot consider one if it arrives. The sole exception is a report required by court rule that says nothing more than whether the parties reached an agreement.⁷

A mediator who tells the judge that one side bargained unreasonably has violated the statute, and the comment should not factor into any ruling.

When the Mediation Ends for Confidentiality Purposes

Knowing when the mediation is over determines which later communications are still protected. Under Section 1125, the mediation ends when any one of these happens:

The parties sign a written agreement that fully resolves the dispute.
The parties reach an oral agreement that fully resolves the dispute and meets Section 1118’s recording requirements.
The mediator gives the participants a signed writing stating the mediation is terminated.
A party gives the mediator and the other participants a writing stating the mediation is terminated. In a dispute with more than two parties, the remaining parties can continue.
No communication between the mediator and any party relating to the dispute occurs for 10 calendar days. The parties and mediator can shorten or lengthen this window by agreement.

⁸

If the mediation only partially resolves the dispute, it ends for the resolved portion when the parties execute a qualifying written agreement or recorded oral agreement covering that piece. Nothing in Section 1125 forces a party to stay; it just marks when the clock stops on confidentiality.

What Happens If Someone References Mediation Later

Section 1128 gives the rule teeth. A reference to a mediation during a later trial is treated as an irregularity in the proceedings under Code of Civil Procedure section 657, a recognized ground for a new trial. In other noncriminal proceedings, a reference to the mediation is grounds for vacating or modifying the decision and granting a new hearing, if the reference materially affected a party’s substantial rights.

If opposing counsel mentions a settlement offer you made in mediation, or a mediator’s view on liability, and the judge or jury hears it, the entire outcome can be undone. The statute effectively forces everyone involved to treat mediation evidence as if it does not exist.

Confidentiality and Attorney Malpractice Claims

This is the sharpest edge of the rule. In Cassel v. Superior Court (2011), the California Supreme Court held that Section 1119 protects private communications between a client and the client’s own attorney when those communications were made for the purpose of, or during, a mediation. That remains true even when the client later sues the attorney for malpractice based on conduct in the mediation. The court read the statute’s language as clear and unambiguous and refused to create a judicial exception, meaning strategy talks, settlement advice, and the attorney’s assessment of the case stay out of a later malpractice trial.

The legislature responded in 2019 with Section 1129, but not with an exception. Instead, Section 1129 requires attorneys to give clients a written disclosure before mediation begins, explaining that mediation communications, including private attorney-client discussions, generally cannot be used as evidence in a later malpractice or ethics action. The client signs to acknowledge they understand. Failing to provide the disclosure is not grounds to set aside an agreement reached in mediation.

The disclosure also makes clear what the confidentiality rule does not block. It does not limit the attorney’s potential liability in general terms, and it does not prevent a client from reporting misconduct to the State Bar or cooperating with a disciplinary investigation or criminal prosecution. The evidentiary barrier in civil malpractice litigation stays in place, but the regulatory and disciplinary paths remain open.⁶

1
California Legislative Information. California Code EVID 1119 – Mediation Confidentiality
2
California Legislative Information. California Code EVID 1115 – Mediation Definitions
3
California Legislative Information. California Code EVID Chapter 2 – Mediation
4
California Legislative Information. California Code EVID 1123 – Written Settlement Agreements in Mediation
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California Legislative Information. California Code EVID 1118 – Oral Agreements in Mediation
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California Legislative Information. California Code EVID 1122 – Disclosure of Mediation Communications
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California Legislative Information. California Code EVID 1121 – Mediator Reports
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California Legislative Information. California Code EVID 1125 – When Mediation Ends