Evidence Code section 1123 - "Settlement Agreements in Mediation"

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CALIFORNIA EVIDENCE CODE

ADMISSABILITY OF WRITTEN SETTLEMENT AGREEMENTS

MEDIATION

Evidence Code Section 1123

A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:
(1) (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.
(b) The agreement provides that it is enforceable or binding or words to that effect.
(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.
(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

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MEDIATION TIPS: Agreements or stipulations reached in mediation should expressly contain language stating that they may be disclosed and, for instance, filed with the Court. In my divorce mediations I typically will discuss with the parties the merits in having them sign a Stipulation retaining retroactive jurisdiction to award spousal support or child support, to ensure that neither party's interests are damaged if the mediation falls out - this avoids the possibility that one party will attempt to use the mediation process to delay the creation or payment of such obligations. These stipulations say that the document will be held by the mediator, but may be filed with the Court upon the request of either party. I believe it is always essential to maintain an even playing field in mediation, because I never want either party to be worse off for having attempted it!


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