(a) Compliance with confidentiality law A mediator must, at all times, comply with the applicable law concerning confidentiality.
Rule 3.854.Confidentiality
Division 8. Alternative Dispute Resolution · Chapter 3. General Rules Relating to Mediation of Civil Cases · Article 2. Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases · Adopted 1620 · no amendments on record · Last verified July 29, 2026
In one sentenceThis rule requires mediators to follow California’s mediation confidentiality law, explain that confidentiality to participants at the outset, disclose their caucus practices before holding separate conversations, and never use information learned in confidence outside the mediation or for personal gain.
Full Text of Rule 3.854
(b) Informing participants of confidentiality At or before the outset of the first mediation session, a mediator must provide the participants with a general explanation of the confidentiality of mediation proceedings.
(c) Confidentiality of separate communications; caucuses If, after all the parties have agreed to participate in the mediation process and the mediator has agreed to mediate the case, a mediator speaks separately with one or more participants out of the presence of the other participants, the mediator must first discuss with all participants the mediator’s practice regarding confidentiality for separate communications with the participants. Except as required by law, a mediator must not disclose information revealed in confidence during such separate communications unless authorized to do so by the participant or participants who revealed the information.
(d) Use of confidential information A mediator must not use information that is acquired in confidence in the course of a mediation outside the mediation or for personal gain.
Plain-English Summary
Confidentiality is what lets people speak candidly in mediation, and Rule 3.854 places four separate duties on the mediator to protect it. The mediator must follow the confidentiality law that governs mediation generally, and must give participants a general explanation of how that confidentiality works before or at the start of the first session — people should know the ground rules before they start talking.
The rule pays particular attention to caucusing, the practice of meeting privately with one side at a time. Before a mediator starts holding separate conversations, the mediator has to explain how information shared in those side sessions will be handled — will it stay private unless the speaker agrees to share it, or will it flow more freely to the other side? Participants need that answer before they decide what to say behind closed doors. Once a participant reveals something in confidence during a caucus, the mediator generally cannot pass it along without permission, except where the law requires disclosure.
Finally, the rule closes off any use of confidential information for the mediator’s own benefit or for purposes outside the mediation. Information learned during the process stays in the process; a mediator cannot repurpose it elsewhere or trade on it personally.
Advisory Committee Comment
The following comment is published by the Judicial Council of California alongside the rule itself — not commentary from this site.
Subdivision (a). The general law concerning mediation confidentiality is found in Evidence Code sections 703.5 and 1115–1128 and in cases interpreting those sections. (See, e.g., Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155; and Gilbert v. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240.)
Frequently Asked Questions
Does a mediator have to explain confidentiality before mediation starts?
Yes. Rule 3.854 requires a general explanation of how mediation confidentiality works, given at or before the outset of the first session.
Can a mediator share what one side said privately during a caucus?
Only with permission. Before holding separate conversations, the mediator must first explain the practice for handling caucus communications. Once something is shared in confidence during a caucus, the mediator generally cannot disclose it without authorization from whoever revealed it, unless the law requires disclosure.
Can a mediator use something learned during mediation for their own benefit afterward?
No. Rule 3.854 bars a mediator from using information acquired in confidence during a mediation outside that mediation or for personal gain.
Amendment History
Rule 3.854 renumbered effective January 1, 2007; adopted as rule 1620.4 effective January 1, 2003.
Source & verification. Rule text is reproduced verbatim from
the Judicial Council of California. Adopted by the Judicial Council of California.
Last verified July 29, 2026.
· Official source
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