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CALIFORNIA EVIDENCE CODE

EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES

MEDIATION

Evidence Code Section 1122

(a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if either of the following conditions is satisfied:
(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.
(2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.
(b) For purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in subdivision (b) of Section 1115.

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MEDIATION TIP: The purpose of this statute is to make it clear that the general rule is that all participants must agree in writing before documents or communications created or expressed during the mediation process can be shared outside of it, but also to create an exception whereby unilaterally prepared materials may be disclosed as long as they don't reveal anything about what was discussed by all the participants. A mediator does not need the consent other people who played an administrative role in the mediation in order to make otherwise authorized disclosures.