Asked 12 months ago - Santa Rosa, CAFlag
It states in the agreement that: "Mediation relies on confidentality. You agree not to utilize any information, including drafts of any document prepared by the mediator in court or otherwise against the other person(s) in mediation. (Lawyer's name), their file, records or notes, etc., are not subject to subpoena by you or anyone acting on your behalf. You waive the right to subpoena the mediator, their file, records or notes, etc., at any time. You make this agreement with each other and the mediator, as a condition of mediation. " What does that mean? Am i entitled to copies of the documents he has put together and/or filed with the court? It also states that we will recieve a copy of each draft prepared by the mediator. So far, we have not recieved anything.
Anything filed in court is a public record so of course you can get copies. Everything else you talked about is covered in the agreement with your mediator. Normally, except for things actually contained in the court file, everything else obtained or exchanged during the mediation cannot be used for any other purpose. As far as copies of each draft. I assume you are talking about the final agreement. Perhaps the mediator has not prepared a first draft yet. Despite the fact you are in mediation, you should have a consulting attorney working with you specifically. If you don't, you are at a big disadvantage.
The confidentiality "boilerplate" provision you quoted is pretty standard. If you have concerns or questions about obtaining records for your own use, the first person you should speak to is the mediator.
Additionally, it is a good idea to have a consulting attorney advising you during the mediation process, assuming you can afford one. Such attorney, who only represents your interests, can help you understand your rights and obligations, including the value of your position on any particular issue, so you'll be able to better negotiate settlement terms.
That said, a consulting attorney, as perhaps you know, is not mandatory to utilize mediation, and often times, people can't afford both the mediator's fees and the fees of their own consulting attorney. If you can afford one, great. If not, then you can still use mediation to save costs and heartache, compared to litigation.
Any documents "filed with the court" are a matter of public record, thus you have a right to obtain copies of those documents.
James V. Sansone, Esq.
Attorney & Counselor at Law
Law Offices of James V. Sansone
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Santa Rosa, CA 95401
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