How Does Mediation Work in California? A Step-by-Step Guide
Mediation is one of California’s most popular ways for individuals and businesses to resolve disputes without going to court. In mediation, a neutral professional—called a mediator—helps parties communicate, negotiate, and ideally reach their own agreement. Unlike a judge or arbitrator, the mediator does not decide who wins or loses. Instead, he or she guides the process so that you and the other party can find common ground (Cal. Evid. Code §§ 1115–1129).
What is Mediation?
Mediation is a confidential and informal process that brings all parties in a dispute together with a neutral third-party mediator. The goal is to foster open conversation and creative problem-solving, with the mediator facilitating—not dictating—the final resolution. All decisions and agreements come from the parties, not the mediator (Cal. Evid. Code §§ 1115–1129).
When is Mediation Used?
In California, mediation is commonly used for:
Family law matters and divorce
Real estate or property disputes
Employment issues
Business, contract, and consumer matters
Homeowners association (HOA) disputes
Mediation might be required by a contract, ordered by the court, or voluntarily chosen by parties who want to avoid the expense and stress of a lawsuit (Cal. Civ. Code § 5925).
The Steps in a California Mediation Session
Understanding the process puts you at ease. Here’s how a typical California mediation unfolds:
Agreement to Mediate: You and the other party agree, or the court orders mediation.
Selection of Mediator: Both sides choose a mediator, often from a court-approved panel or private organization.
Pre-Mediation Preparation: You gather necessary documents, clarify your goals, and consider your options.
Mediation Session: The mediator explains ground rules, especially strict confidentiality (Cal. Evid. Code § 1129), and facilitates conversation through joint or private meetings.
Negotiation and Problem-Solving: The mediator helps parties clarify positions, explore solutions, and break barriers to agreement.
Settlement or No Settlement: If you reach agreement, it’s put into writing and signed. If not, you can proceed in court or try another resolution process.
Confidentiality Protections
Confidentiality is a key feature of mediation in California. Almost everything said, offered, or created during the mediation is protected, meaning it cannot be used as evidence in court (Cal. Evid. Code §§ 1119, 1121). California law even requires your lawyer to explain these confidentiality rules to you in writing before mediation begins (Cal. Evid. Code § 1129). With rare exceptions, participants can speak openly and negotiate honestly knowing their words won’t later be used against them.
Role of the Mediator
The mediator is a neutral facilitator whose job is to help everyone communicate, understand each other’s viewpoint, and overcome deadlock. He or she does not make decisions or assign blame. Instead, the mediator encourages respectful conversation, proposes creative solutions, and, if an agreement is reached, helps draft a settlement.
What Happens if a Settlement is Reached—or Not?
If you reach a settlement in mediation, the terms are written out and signed. Most mediation agreements are legally binding and enforceable in court. If no agreement is reached, you may continue in court, return to negotiation, or try another ADR method. Importantly, unless every party agrees otherwise, nothing discussed or offered in mediation can be admitted in court (Cal. Evid. Code §§ 1119, 1121).
Practical Tips for Clients Considering Mediation
Prepare documents and notes before your session.
Define your goals and areas where you can be flexible.
Listen actively to the other party’s concerns and point of view.
Stay open-minded—creative solutions often yield the best results.
Ask your mediator or lawyer about any part of the process you don’t understand.
Remember, compromise is usually necessary for successful mediation.
Frequently Asked Questions (FAQs) About Mediation
Q: Is mediation required before filing a lawsuit in California?
A: Not always. But many contracts and some California laws—especially for real estate and homeowners association disputes—require parties to attempt mediation before litigation. Courts and judges may also order mediation before trial (Cal. Civ. Code § 5925).
Q: Is what I say in mediation private?
A: Yes. California law protects almost everything discussed or offered during mediation. It’s confidential and generally cannot be used as evidence in court, except in rare circumstances (Cal. Evid. Code §§ 1115–1129, 1119, 1121).
Q: Who pays for mediation?
A: Costs are typically shared equally, unless the parties agree otherwise. Court-sponsored mediation programs may have set fees or sliding scales, while private mediators usually charge by the hour or day. For larger or more complex disputes, total mediation fees often range. As a general estimate, expect average market costs to be in the $7,500 to $10,000 range, which is divided between the parties.
Q: Can I bring my lawyer to mediation?
A: Yes. You may have your lawyer attend mediation. He or she will protect your interests, explain confidentiality rules, and advise you on any settlement terms (Cal. Evid. Code § 1129).
Q: What if we don’t settle in mediation?
A: You can proceed with a lawsuit or try another type of dispute resolution. The confidentiality rules usually mean you cannot use offers or statements from mediation as evidence in court (Cal. Evid. Code §§ 1119, 1121).
Q: Is a mediation agreement binding?
A: Yes. If signed by all parties, it’s enforceable in court as a contract.
Q: How do I choose a mediator?
A: You can select a mediator from court-approved lists, private organizations, or based on attorney recommendations. Choose someone with experience relevant to your dispute and an approach that matches your needs.
Conclusion
Mediation in California is a confidential, flexible, and effective way to resolve disputes. By understanding the process, preparing effectively, and knowing your legal protections, you give yourself the best chance for a fair outcome—without the costs and stress of court. If you have a lawyer, he or she must discuss mediation confidentiality with you before you begin (Cal. Evid. Code § 1129). Do not hesitate to ask questions or advocate for your interests; the mediation process is designed for your participation and empowerment.
Key Statutes to Know for mediation
Cal. Evid. Code §§ 1115–1129
Cal. Evid. Code §§ 1119, 1121
Cal. Civ. Code § 5925
