No. Absolutely not. In California, anything that is said in mediation, anything that is written before mediation, during mediation, or having to do with the mediation is not admissible as a matter of public policy. On rare occasion, we have clients that decide that they cannot proceed with mediation and end up in litigation. Sometimes they will try and bring up discussions or request paperwork that was created during the mediation sessions to bring into court. California Evidence Code Section 1119 states very clearly that any admission, discussion, writing, or negotiations made in the mediation room can be compelled to be given or will be admissible and shall remain confidential.
Can Mediation Documents and Notes Be Subpoenaed?
No. You nor San Diego Family Mediation Center can be compelled to produce mediation notes that will be brought into litigation. We do this because mediation is 100% confidential. Clients should feel as though they can speak freely and what they say cannot be held against them in court at a later date, if they end up in litigation. If an attorney asks for mediation documents, know that they do not have to be given, and they will not be held admissible in court anyway.
What If I Want the Mediation Documents to Be Considered?
While it may seem as though having the mediation evidence could help you move forward faster in your case, it still will not be admissible in court. The court will not look at any evidence that was made in anticipation of mediation or during mediation. They do not want to stifle negotiations and mediations that are made outside the courtroom.
If you have questions about the confidentiality of mediation, please contact our office to speak with our San Diego mediators.