Mediation Confidentiality Agreement

Agreement

1.         Role of the Mediator as a Neutral. The Parties are attempting to resolve a dispute through mediation, and have mutually selected Michael A. Strauss, of Michael Strauss Mediation and Arbitration to serve as their mediator. As used herein, the term “Mediator” refers to Michael Strauss and Michael Strauss Mediation and Arbitration’s employees. 

The Mediator’s role is to assist the Parties in working toward a voluntary, mutually agreeable resolution. The Parties agree to participate in the mediation process in good faith. The Parties acknowledge that the Mediator is serving in a neutral capacity and is not acting as an attorney or advocate for any party. The Mediator’s statements are not legal advice. The Mediator has no authority or ability to make any decisions for any party regarding any settlement or settlement terms. Any participation in the mediation and any settlement agreement between the Parties is entirely voluntary; participation in the process does not guarantee that a settlement will be reached. If the Mediator assists in the preparation of any settlement agreement or memorandum of understanding, the Mediator is acting solely as a scribe. Each signatory should have their counsel independently review any such document and advise them before signing. 

2.         Confidentiality and Inadmissibility in Any Legal Proceeding. The Parties agree that the mediation process, and all written and oral communications connected with it, constitute confidential and privileged settlement communications, covered by Evidence Code §§ 1115-1128, 1152, 1154, Federal Rule of Evidence 408, and any other applicable provisions of law that protect settlement and mediation communications. The Parties agree that all written and oral communications made during the mediation process, and in connection with it – including writings and statements by the Mediator, each party, the Parties’ counsel, representatives, and witnesses, whether made before, during, or after the mediation session, and any notes, analyses, reports, or documents created by or for the Mediator in connection with the mediation – are not discoverable and are inadmissible for any purpose in any legal, administrative, or other proceeding. Notwithstanding the above, the fact that a mediation took place, the time and date of the session, the identities of the participants, and whether an agreement was or was not reached shall not be deemed confidential. 

The Parties acknowledge that Evidence Code § 703.5 applies to this mediation process. The Parties agree that they will not subpoena the Mediator or seek to have the Mediator testify or disclose any confidential information or documents related to the above-referenced mediation in any legal, administrative, or other proceeding. The Parties agree that they will not seek to introduce into evidence, or use for any purpose, any statements or writings made by the Mediator.  

3.         Written Agreements Entered into During or After Mediation. The Parties intend and agree that any written settlement agreement, memorandum of understanding, or other such document, that is signed by the Parties during or at the end of the mediation process shall be binding and enforceable pursuant to Evidence Code § 1123 and Code of Civil Procedure § 664.6, if applicable. 

4.         Agreement to Extend Mediation Session. To facilitate confidential follow-up communications after a mediation session, the Parties agree to extend the 10-day period under Cal. Evidence Code § 1125(a)(5) until the Mediator, any party, or a party’s counsel expressly terminates the mediation in writing, or until the matter results in an executed settlement agreement or final judgment. 

5.         Agreement to Use Zoom for Mediation. Where the Parties have not scheduled an in-person mediation, the Parties agree to use Zoom or a comparable platform for the mediation session. The Parties agree to take all steps to maintain the confidentiality of the proceeding, including ensuring that they are in a private setting, and ensuring that the only persons who can hear, see, or participate in the mediation are those who are signatories to this Agreement. 

6.         Agreement Not to Record or Photograph. The Parties agree not to make any video recordings or audio recordings or to take any photographs or screen shots of any part of the mediation session or any related communications before, during, or after the mediation session. 

7.         Breach and Enforcement. Given that this Agreement is intended to permit the Parties to disclose sensitive information during the mediation, the Parties acknowledge that any breach of this Agreement would cause irreparable harm for which monetary damages would be inadequate. Thus, any signatory to this Agreement may obtain an injunction to prevent disclosure of confidential information in violation of this Agreement. If any party breaches this agreement, that party shall indemnify the non-breaching party or Parties and the Mediator for all attorneys’ fees and costs incurred as a result of such breach. 

8.         Counterparts/Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement binding all Parties. The Parties may use DocuSign or any comparable electronic signature technology to execute this Agreement, pursuant to California Civil Code section 1633.7. A facsimile or electronic/digital signature shall be treated as an original signature for all purposes.

Understood and agreed.