California Evidence Code 1119 makes nearly everything said, written, or exchanged during a mediation confidential and inadmissible in later noncriminal proceedings. Oral statements, admissions, notes, briefs, mediator proposals, and settlement discussions between the participants are all off-limits as evidence and off-limits in discovery. The statute opens with “except as otherwise provided in this chapter,” and those exceptions do most of the work in real disputes: they decide whether the deal you reached is enforceable, whether the other side can quote your offer against you, and whether your own lawyer’s advice can ever be used in a malpractice case.1California Legislative Information. California Code EVID 1119 – Mediation Confidentiality
What Section 1119 Actually Blocks
The statute covers three categories of material. Nothing said and no admission made during or in preparation for a mediation may 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 remain confidential.1California Legislative Information. California Code EVID 1119 – Mediation Confidentiality
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 weak point, or brainstorm an unusual solution without risking that any of it resurfaces in front of a judge or jury.
Read the noncriminal limitation carefully. Section 1119 applies to arbitrations, administrative hearings, civil lawsuits, and other noncriminal proceedings where testimony can be compelled. It says nothing about criminal cases. If a statement made in mediation becomes relevant to a criminal investigation or prosecution, the statute does not shield it.
When the Protection Begins and Ends
Confidentiality attaches earlier than most people assume. The chapter’s definitions cover a “mediation consultation,” meaning any communication between a person and a mediator for the purpose of considering, initiating, resuming, or retaining the mediator. The moment you contact a mediator to explore using their services, that conversation is already protected, even if you never book a session.2California Legislative Information. California Code EVID 1115 – Mediation Definitions
On the back end, Section 1125 sets out when the mediation actually ends, which fixes the cutoff for what is still protected. Any one of the following closes it:
- 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 that party’s participation is terminated. In multi-party disputes, the remaining participants may continue.
- No communication occurs between the mediator and any party about the dispute for 10 calendar days. Participants can shorten or lengthen this window by agreement.
If the mediation partially resolves the dispute, it ends for confidentiality purposes when the parties execute a written or qualifying oral agreement covering the resolved portion. Walking away without any agreement is always an option; Section 1125 only fixes the point at which the protective clock stops running.
What Is Not Protected
Section 1120 draws the line that catches people off guard. Evidence that already existed before mediation does not become confidential just because someone brought it to a session. A contract, financial ledger, email chain, or photograph that was admissible before the mediation stays admissible after it. Confidentiality shields the material generated for the mediation itself, not the underlying facts of the case.4California Legislative Information. California Code EVID Chapter 2 – Mediation
A few other things also fall outside the shield: the bare fact that the parties agreed to mediate, the identity of the mediator, procedural agreements like stipulations not to take a default, and the disclosure declarations required in family law cases under Family Code sections 2104 and 2105. And, again, criminal proceedings are outside Section 1119’s scope entirely.
Making a Settlement Enforceable
This is where mediation confidentiality most often trips people up. If you reach a deal but the deal itself is confidential, you cannot prove it to a court that has to enforce it. The chapter solves that problem, but only if you follow its formalities.
Written Agreements Under Section 1123
A written settlement agreement prepared during mediation is not confidential 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 in writing to disclosure; or the agreement is used to show fraud, duress, or illegality relevant to a disputed issue.5California Legislative Information. California Code EVID 1123 – Written Settlement Agreements in Mediation
The practical rule: put a sentence in your signed agreement expressly saying it is enforceable, binding, or admissible. Without that language, the deal you thought you closed may remain locked behind Section 1119.
Oral Agreements Under Section 1118
Oral agreements reached in mediation can also survive the confidentiality bar, but only if they satisfy all four requirements of Section 1118. The agreement must be recorded by a court reporter or reliable audio recording. Its terms must be recited on the record with the parties and 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.6California Legislative Information. California Code EVID 1118 – Oral Agreements in Mediation
That 72-hour signature deadline is where oral deals most often fail. Parties leave a long session relieved that they reached terms, then let the paperwork slide. Miss the window and the oral agreement may not qualify under Section 1118, which means it may not be provable in court at all.
Waiving Confidentiality by Agreement
Section 1122 allows any mediation communication or writing to lose 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 alone prepared, provided the document does not reveal anything said, done, or admitted during the mediation itself.7California Legislative Information. California Code EVID 1122 – Disclosure of Mediation Communications
The word to focus on is “all.” One side’s willingness to open the file means nothing if the other side objects. The mediator’s agreement also counts, and if the mediator consents, that consent binds anyone the mediator designated to assist.
Limits on What Mediators Can Tell the Court
Section 1121 puts a separate lock on the mediator’s mouth. A mediator cannot submit any report, assessment, evaluation, recommendation, or finding about the mediation to a court or other adjudicative body, and the court cannot consider one if it arrives anyway. The narrow exception is a report required by court rule that says no more than whether the parties reached an agreement.8California Legislative Information. California Code EVID 1121 – Mediator Reports
In court-ordered mediations, judges sometimes want to know whether the parties bargained in good faith. Under California law, the mediator cannot answer that question unless every party consents in writing or through a recorded oral agreement meeting Section 1118. A mediator who volunteers that a party was unreasonable has stepped outside the statute, and that comment should not factor into any ruling.
What Happens if Someone Breaches Confidentiality at Trial
Section 1128 gives the confidentiality rule teeth. Any reference to a mediation during a later civil 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 mediation is grounds for vacating or modifying the decision and granting a new hearing if the reference materially affected a party’s substantial rights.
The remedy is not theoretical. If opposing counsel mentions a mediation offer, or a mediator’s view of liability, and the fact-finder hears it, the outcome can be undone. That risk is what forces everyone involved to treat mediation evidence as if it does not exist.
Attorney-Client Communications and Malpractice Claims
This is the most contested corner of the statute. 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, even when the client later sues the attorney for malpractice based on the mediation itself. The court called the statutory language clear and unambiguous and refused to create a judicial exception. Strategy discussions, the attorney’s recommendations, and the attorney’s assessment of settlement value all fall inside the shield.
The legislature responded in 2019 with Section 1129, but not by opening an exception. Instead, Section 1129 requires attorneys to give clients a written disclosure before mediation begins, explaining that mediation communications, including private conversations between client and attorney, generally cannot be used as evidence in a later malpractice or ethics action. The client must sign an acknowledgment. Failing to provide the disclosure is not, on its own, grounds to set aside an agreement reached in mediation.7California Legislative Information. California Code EVID 1122 – Disclosure of Mediation Communications
The disclosure also notes what Section 1119 does not do. It does not limit an attorney’s potential liability, and it does not stop a client from reporting misconduct to the State Bar or cooperating with a disciplinary investigation or criminal prosecution. The evidentiary barrier in a civil malpractice suit is real, but the regulatory path stays open. If you are concerned about your attorney’s conduct during a California mediation, a State Bar complaint is not blocked by Evidence Code 1119.