Due to the confidentiality of the mediation process, evidence of a settlement reached at mediation is inadmissible, and the settlement therefore cannot be enforced, unless the settlement satisfies the provisions of Evidence Code Section 1118 (with respect to “oral agreements”) or 1123 (with respect to “written agreements”).
Evidence Code Section 1118 requires that an “oral agreement” must meet the following requirements: (a) it must be recorded by a court reporter, tape recorder or otherwise reliable means of sound recording; (b) the terms of the agreement must be recited on the record in the presence of the parties and the mediator, and the parties must express on the record that they agree to the terms recited; (c) the parties must expressly state on the record that the agreement is enforceable or binding, or words to that effect; and (d) the recording must thereafter be reduced to writing, and the writing must be signed by the parties, within 72 hours after it is recorded.
Evidence Code Section 1123 requires that a “written agreement” must be signed by the settling parties and must meet one of the following requirements: (a) it must provide that it is admissible or subject to disclosure, or words to that effect; or (b) it must provide that it is enforceable or binding, or words to that effect. Given how strictly the courts have thus far adhered to and interpreted these provisions, it is strongly recommended that counsel bring a proposed form of settlement agreement or release to the mediation.