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The Evidence Code 1129 Mediation Disclosure Checklist

Since January 1, 2019, a California attorney has to give a client a printed disclosure of mediation confidentiality, and get it signed, before the client agrees to mediate. This checklist walks through who the rule covers, when it’s due, the form rules, the safe-harbor model and how to build it into intake, with each line tied to its subdivision of the code.

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The rule in one sentence

Before a client agrees to mediate, the attorney gives the client a printed disclosure of California’s mediation confidentiality restrictions and gets the client’s signed acknowledgment that they’ve read and understood them (Evidence Code section 1129).

Who and when

• Applies to every attorney representing a client in a mediation, except in a class or representative action. (1129(a))
• Give it before the client agrees to participate. (1129(a))
• Retained after the client already agreed? Comply as soon as reasonably possible after you’re retained. (1129(b))

The form

• Printed (1129(c))
• In the client’s preferred language (1129(c))
• At least 12-point type (1129(c))
• On one page, not attached to any other document: not inside the engagement letter, not stapled to the mediation agreement (1129(c))
• Includes the names of the attorney and the client (1129(c))
• Signed and dated by both (1129(c))

The safe harbor

• Use the statutory model, titled “Mediation Disclosure Notification and Acknowledgment,” word for word from the official code. A disclosure that uses the model and meets the form rules is deemed to comply. (1129(d))
• Don’t paraphrase the model. If you translate it, translate the model text itself.

What the client is being told

In summary, the model tells the client that what’s said, written or done in a mediation is generally confidential and can’t be used as evidence in a later non-criminal proceeding, and that the mediator generally can’t be made to testify about it.

It also tells them their own communications with their attorney about the mediation are covered, including in a later malpractice or State Bar matter. The model notes that it doesn’t limit the attorney’s liability for malpractice or the client’s right to report misconduct to the State Bar or cooperate with a criminal prosecution.

If it’s missed

• Failing to comply isn’t, by itself, a ground to set aside an agreement reached in mediation. (1129(e))
• Commentators note it can still raise professional-responsibility questions for the attorney. Treat it as a required step, not a formality.

Build it into the file

• A single-page template in each language your clients use
• A step in the intake or engagement checklist that runs before any mediation is scheduled
• The signed original kept in the client file
• A reminder for substituted or associated counsel retained mid-matter

Related sections worth reviewing together

Evidence Code section 1119 (mediation confidentiality), Evidence Code section 1120 (what isn’t protected just because it was used in mediation), Evidence Code section 1121 (limits on mediator reports), Evidence Code section 1123 (when a written settlement is admissible and enforceable) and Evidence Code section 703.5 (mediator testimony). Background: Cassel v. Superior Court (2011) 51 Cal.4th 113, on attorney-client communications made for a mediation, the case that led to the disclosure rule.

About the Dyadic Mediation Team

Dyadic Mediation is led by two neutral mediators working the same table, the legal mind and the human mind. Here’s who you’d be sitting with.

Fred Smith

Neutral Mediator · Communications Strategist

Fred’s a communications strategist and business operator who’s spent his career in high-stakes rooms where words carry as much weight as the numbers, working at Hyundai Capital and on corporate programs for Kia Motors America, Volkswagen, and Audi. He’s a former Marine Corps Sergeant and Combat Correspondent, a job built on getting people to tell you what really happened, with Marine Corps training in counseling and leadership and the Meritorious Service Medal. At the table he’s the human mind, the neutral who reads the people and the pressure.

Warren Morten

Neutral Mediator · Founder, The Morten Law Group

Warren’s been a California attorney since 2006, selected to Super Lawyers for Business & Corporate law (2024 to 2027), and he founded The Morten Law Group in Irvine, with a career spent in the rooms where business is really decided: corporate and partnership matters, estate planning, health care, and mergers and acquisitions. At the table he’s the legal mind, the neutral who reads the law and the leverage. He serves as a neutral mediator and doesn’t represent either side.