“memorandum of understanding”
A confidential record of what happened in mediation
Mediation is confidential under California law. The goal of confidentiality is to encourage parties to attempt settlement of their disputes without fear that their discussions will be used against them in court later. The law favors parties who try to settle their cases without litigation because it eases the burden of the courts and saves money for taxpayers; plus, it is better for the parties involved, lowering their stress, saving money, and providing greater flexibility and control over outcomes.
a record of the tentative agreements made in each mediation session
During each mediation session, your mediator will keep detailed notes describing what was discussed, including any agreements made. These notes will then be formalized into a “Memorandum of Understanding” (“MOU”) describing the topics addressed during that day’s session and sent to the parties for their review and signature.
The MOU is confidential and non-binding; it serves merely as a record to guide mediation, and is not admissible as evidence or enforceable as a contract in a court of law under California Evidence Code sections 1115-1129. The agreements it contains are tentative, meaning neither party can be held to them - yet.
WHY IS THE MOU NON-BINDING?
The purpose of making MOUs non-binding is to encourage parties to get creative without fear that their willingness to consider a particular settlement would be held against them if they later sought a different result in court. It also gives each party an opportunity to seek independent advice about the tentative agreements discussed in mediation before they can be enforced.
DO THE AGREEMENTS MADE IN MEDIATION BECOME BINDING?
Once mediation is completed and the parties are satisfied with their agreements and have had an opportunity to consult an independent attorney, your MOU will need to be turned into an enforceable, signed agreement, which becomes binding when it is signed, and is no longer confidential. Our mediators will nonetheless ensure that everything shared and discussed during mediation remains private and secure, accessible only by our attorneys and staff - but your signed agreement will need to be filed with the court in order for your case to come to a close.