Michael P. Carbone

1201 Brickyard Way, Suite 201 Point Richmond, CA 94801 Tel 510.234.6550 Fax 415.480.1799

Publications > Construction Defect Mediation > Sample Confidentiality Clause


The following language is suggested for cases in which the court is appointing a special master and the parties have voluntarily agreed to employ another neutral to serve as the mediator.


Stipulation to Mediation and Selection of Mediator


 The Court encourages the parties to utilize mediation for the purpose of settling this case.  Any party who declines to participate in mediation shall so notify the court and the Special Master, in writing, at the time of the first Status Conference; provided however that parties who enter the case after the time of such Status Conference and who decline to participate in mediation shall so notify the court and the Special Master, in writing, concurrently with the filing of their first pleading.

 [Alternative 1:  Where mediator has not yet been chosen.]

The parties shall be responsible for choosing and retaining the services of the mediator (who shall be a person other than the Special Master) and shall promptly notify the court and the Special Master thereof.

 [Alternative 2: Where mediator has been chosen by the parties.]

 The parties to this Stipulation have voluntarily agreed to Mediation and to the selection of Michael P. Carbone, 1201 Brickyard Way, No. 201, Pt. Richmond, California 94801-4140 as the Mediator.  The parties hereto acknowledge, pursuant to California Rules of Court, Rules 3.900 and 3.920, that the Mediator is not court-appointed.


Confidentiality Of Mediation Communications


 All parties to this Stipulation hereby agree that, unless otherwise provided herein, all communications among the parties, their counsel, or consultants, during the course of and pursuant to the mediation process, and all “writings” as that term is used in Evidence Code Section 250 that are prepared for the purpose of mediation are protected from disclosure by, and to the extent of, the provisions of Evidence Code Sections 1115 through 1128, and 1152.  Without limitation, any statements or responses to statements of claims or any other writings that are designated by the preparer as “preliminary” or “for settlement purposes only” or “for mediation only” shall be deemed to have been prepared for the purpose of mediation.

 For the purpose of confidentiality, the mediation of this case shall begin as of the date of the filing of this Stipulation and Order and, notwithstanding the terms of Evidence Code Section 1125(a)(5), shall continue until such time as the Mediator notifies all parties in writing that the mediation has ended.  If the parties or their consultants attend site inspections or other meetings during the course of the mediation without the mediator being present, any such meetings shall be deemed confidential unless the participants in such meetings agree otherwise in writing in advance.

 The parties hereto have acknowledged that Evidence Code Section 1120 provides that:

(a)  Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or mediation consultation. 

(b)  This chapter does not limit any of the following: 

(1)  The admissibility of an agreement to mediate a dispute.

(2)  The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.

(3)  Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in the dispute.


In accordance therewith, no evidence obtained through discovery as opposed to mediation, whether or not obtained pursuant to any order of the Special Master or the Court, shall be protected from disclosure.

             The parties hereto have further acknowledged and agreed that any oral or written settlement agreement that is made in the course of, or pursuant to the mediation of this case shall be admissible to the extent provided by Sections 1123 and 1124 of the California Evidence Code in any action, proceeding, or motion for the enforcement thereof.


                             Mediation Confidentiality Not Applicable to Special Master


The parties are fully aware and understand the effects of Evidence Code Section 1121 which states as follows:


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 the 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.


Notwithstanding the terms of said Section 1121, the parties have expressly agreed that the Special Master is not acting as a “mediator” within the meaning thereof and that the Special Master is authorized to provide reports, assessments, evaluations, recommendations and findings to the Court regarding the discovery process and other matters within his jurisdiction under this Order.






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