The California Evidence Code provisions regarding mediation clearly place restrictions on the ability to use mediation documents and communications outside the context of the mediation. Those restrictions must be considered.

Parties should take practical approaches to ensure that if they need to use any mediation communications and documents, they can do so. Otherwise, parties should engage in a settlement approach that all participants agree or acknowledge is not a mediation or is not subject to Evidence Code section 1119 et seq. However, even in the absence of statutory exceptions or the required waivers, there is a possibility that an insured may be able to use mediation communications and records as evidence of a carrier's bad faith.

The full text of this Expert Commentary may be accessed here.

Readers may access the author's martindale.com law directory listing here.