Extend 10-Day Period In Evidence Code section 1125(a)(5)
It is common for a mediator to “follow-up” after a mediation session has been completed, to see if more remains to be done, or if a settlement is being implemented successfully. Are the communications confidential? Yes, not a problem – if the parties agreed to extend the 10-day period set out in Evidence Code section 1125(a)(5).
Evidence Code section 1125 provides that, for purposes of mediation confidentiality, mediation ends when any one of five conditions is satisfied. Those five conditions include (i) execution of a written settlement agreement that completely settles the dispute, (ii) an oral agreement that completely resolves the dispute, and which is read into the court’s record consistent with Evidence Code section 1118; (iii) the mediator provides a writing to the parties stating that the mediation is terminated; or words to that effect, consistent with Evidence Code Section 1121; (iv) a party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect, consistent with Section Evidence Code 1121; (v) or for 10 calendar days, there is no communication between the mediator and any of the parties to the mediation relating to the dispute. The mediator and the parties may extend or shorten this time by agreement.
One of our Southern California arbitral forums includes the following language in confidentiality agreements:
“In order to allow the mediator to confidentially follow-uip after the mediation session, the parties and the mediator agree to extend the 10-day period set out in Evidence Code section 1125(a)(5) until the date any party terminates the mediation effort, a verdict is returned or a decision is rendered.”
Problem solved: the mediator and the parties have extended the time by agreement.
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