All You Need to Know About Mediation Confidentiality
Divorce, like marriage, can be a very personal matter. It is not something you would like strangers to be privy to, but that is what exactly will happen if you take your divorce to court.
Divorce records in the court are considered public records. All a concerned person has to do is go to the court where you filed your divorce to request access to your divorce records. Under the California Public Records Act (CPRA), everyone has a statutory right to public records.
Anyone can also attend your court hearings. By law, with certain exceptions, everyone has the right to attend trial proceedings because the public has the First Amendment Right of access to trials.
Filing for divorce is distressing enough. Having to spell out personal and intimate matters in public hearings can be traumatic and invasive. You don’t need a complete stranger to witness you rehash certain events in your marriage.
If you want a more private and compassionate process to end your marriage, you should consider divorce mediation services and settlement.
How Is Mediation Different from Litigation?
Unlike litigation, your mediation meetings are private. It will be just between you, your ex-spouse, and your divorce mediation attorney in Orange County. Everything you discuss in mediation cannot be used against you in court if your case ends up in court.
The law encourages parties settling cases without involving the court. Confidentiality in mediation encourages frank conversation during mediation, and therefore allows couples the best chance at resolving any disagreements without involving the court.
You can feel free to discuss the details of your marriage, even the ugly ones. Mediation is an open platform where you can safely talk about your doubts and your fears. Your mediator is there to help you both find a compromise that is beneficial to you both.
What is Mediation Confidentiality?
The California Evidence Code enforces mediation confidentiality. Here are the provisions of the code meant to protect the process of mediation from scrutiny, even from court proceedings.
· Everything you say is safe.
Section 1119(a) of the Evidence Code Chapter 2 says that “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”
The above simply means that should the mediation not work, your spouse cannot use what you have said in mediation against you in court. Any outburst of emotion, any admission, any information shared in mediation will be protected by the Evidence Code.
· Everything you write is safe.
Section 1119(b) of the Evidence Code Chapter 2 states, “No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”
You can rest assured knowing that any document you have written or prepared during your mediation is also safe and will not be used against you.
· Your mediator cannot testify for you or against you.
Section 703.5 of the Evidence Code states that “No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding…”
Without a signed waiver, your mediator cannot stand in court and be a witness to what has transpired during the mediation.
· Your mediator’s report cannot be used as evidence.
Section 1121 states that “Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally…”
This section applies to all submissions and all adjudications, not just court proceedings. Neither your mediator nor anyone else may submit this confidential and prohibited document. It protects you from any incident of coercion.
A mediator’s report may only be disclosed in court if there is consent from all the parties involved.
The Need for Confidentiality
For a mediation to be effective, the mediator should be able to identify the issues and explore possible settlement agreements. It requires open and honest discussions. Mediation can open deep-seated emotions on sensitive and private matters.
Since the protection that the spouses will usually have in mediation is absent in court, couples are more likely to be more forthcoming with their thoughts and opinions in mediation. Thus, the code also protects the legally naive by not allowing any communications in mediation to be used as evidence.
Contact Us
Contact Cordial Family Lawyers, LLP for affordable, flat fee divorce mediation services and document preparation services in Orange County and throughout Southern California. Please reach out to us at info@cordiallaw.com or 714-549-6179.