MEDIATION CONFIDENTIALITY AGREEMENT FILE NAME: MEDIATOR: PARTIES: CASE NO.: 1. In order to promote honest and candid communication among the parties and the mediator, and to facilitate resolution of the dispute, the parties, their counsel and representatives, and the mediator hereby enter into this Confidentiality Agreement. This Confidentiality Agreement applies to and governs all aspects and stages of the mediation process (even those that predate the execution of this Agreement), including (without limitation) the selection of a mediator, the convening stage of the mediation, all phone conferences and phone calls relating to the mediation and the mediation process, all correspondence, e-mail and other documents relating in any way to the mediation or the mediation process, any and all in-person meetings, site visits, or conferences of any kind, and any post-mediation communications or conferences relating to the mediation. The Mediator is a neutral intermediary who may not act as an advocate for any party during the mediation or for one year thereafter. The mediator further agrees not to divulge substantive, confidential information to non-participants in this mediation process. All statements made during the course of the mediation are privileged settlement discussions, are made without prejudice to any party’s legal position, and are non-discoverable and inadmissible for any purpose in any legal proceeding, including without limitation pretrial proceedings, trial, post trial proceedings, administrative proceedings, arbitration, or the like. Michael D. Young
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The privileged character of any information is not altered by disclosure to the mediator. Disclosure of any records, reports, or other documents received or prepared by the mediator cannot be compelled. The mediator shall not be compelled to disclose or to testify in any proceeding as to any aspect of the mediation, including, without limitation, (i) any records, reports, or other documents received or prepared by the mediator or participant, or (ii) information disclosed or representations made in the course of the mediation or otherwise communicated to the mediator in confidence. No aspect of the mediation shall be relied upon or introduced as evidence of any kind in any arbitral, judicial, or other proceeding, including but not limited to: a. Views expressed or suggestions made by a party, whether with respect to a possible settlement of the dispute or otherwise; Admissions or other statements made in the course of the mediation proceedings; and Proposals made or views expressed by or through the mediator, or the response of any party. The parties further agree, however, that this Agreement does not apply to any written and executed settlement agreement, and such settlement agreement may be introduced into evidence in any subsequent proceeding to enforce the terms of the settlement agreement. Since the parties are disclosing sensitive information in reliance upon this agreement of confidentiality, any breach of this agreement would cause irreparable injury for which monetary damages would be inadequate. Consequently, any party to this agreement may obtain an injunction to prevent disclosure of any such confidential information in violation of this agreement. Any non-breaching party shall also be entitled to any and all remedies to which it may be entitled under law and equity. Any party breaching this agreement shall be liable for actual damages, and shall indemnify the nonbreaching parties, and the mediator, for all costs, expenses, liabilities, and fees, including legal fees, which may be incurred as a result of such breach.
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The laws of the state of California regarding mediation confidentiality — specifically Chapter 2 of Division 9 of the California Evidence Code (Sections 1115-1128) (as enacted in 1997), are hereby incorporated into this agreement and shall apply to this mediation. That Chapter reads in part as follows: “Section 1119: Except as otherwise provided in this chapter: “(a) 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. “(b) No writing . . . 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. “(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.” “Section 1121. 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 in accordance with Section 1118.”
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“Section 1126. Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.” “Section 1128. Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of Section 657 of the Code of Civil Procedure [relating to new trials]. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.” 10. The parties fully understand the following with respect to the mediation process: a. The mediation process is voluntary and non-binding and any party may withdraw and terminate the mediation at any time before execution of a written settlement agreement. The Mediator is free to meet and communicate separately with each party both before and during the mediation session; and indeed, private “caucuses” are often very beneficial in facilitating a resolution. The Mediator will not transmit confidential information given by any party or that party’s representative to another party, the other party’s representative or any third party, unless authorized to do so by the party transmitting the information, or unless otherwise required by law. The party or party representative who is providing confidential information to the Mediator shall inform the Mediator that the information is considered confidential by that party. The Mediator, a lawyer, may freely express his views to the parties on the legal issues of the dispute if such appears beneficial to the dispute resolution process. However, the
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Mediator does not have an attorney-client relationship with any of the parties. e. If the mediation results in a settlement, the parties will cooperate in the expeditious drafting of a written binding settlement agreement and will do all things and execute all documents necessary to fully effectuate the settlement. All participants to the mediation shall be bound by the terms of this Agreement and may be required to sign this Agreement as a condition to his or her participation.
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AGREED TO THIS ___TH DAY OF ____________, 2004.
______________________________________ Attorneys for: Plaintiffs ______________________________________ Attorney for: Defendants MEDIATOR:
_____________________________________ Michael D. Young
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OTHER PARTICIPANTS AGREEING TO BE BOUND BY THIS AGREEMENT: PRINT NAME AFFILIATION SIGNATURE DATE
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