Serving the needs of more than 23,000 legal professionals, the New York City Bar Association offers continuing education as one of its key components. One webinar presented in November 2023 is “Selected Ethics Issues in Mediation & Settlement Negotiations.” Among the topics explored is how ethical issues, particularly those related to confidentiality and conflicts of interest, arise during the course of such negotiations.
Settlements and mediations have different sets of codes guiding confidentiality, with a higher level of confidentiality typically applied to the latter. With mediations, Evidence Code Section 1119(c) stipulates that “all communications, negotiations, or settlement discussions by and between participants in the course of a mediation shall remain confidential.” In addition, no evidence pertaining to anything said throughout the course of mediation is considered “admissible or subject to discovery.” This broad scope of confidentiality in mediation means that virtually everything produced, said, or done is protected.
When it comes to settlements, Evidence Code Section 1152 provides confidentiality protections for evidence of an offer of compromise, or compromise, as well as statements and conduct resulting from related negotiations. However, this pertains only to such situations where the evidence is being used to prove liability for damage or loss. Offers of compromise may be discoverable when used for other purposes, even if they are not admissible as evidence within the court of law.
Dyan Gershman 
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