How Mediation Works in California Employment Cases: A Step-by-Step Guide

What Is Employment Mediation?

Evidence Code Section 1115(a) defines mediation as "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." Section 1115(b) defines the mediator as "a neutral person who conducts a mediation," and extends the term to any person the mediator designates to assist in the mediation or to communicate with participants in preparation for it — which matters, because the confidentiality that attaches to the mediator reaches those people too. In the employment context, this means a trained mediator helps an employee and employer discuss a workplace dispute and attempt to reach a resolution.

Mediation is voluntary and non-binding. Neither party is required to agree to anything, and either party can end the mediation at any time. If the parties do reach an agreement, it is typically memorialized in a written settlement agreement that becomes enforceable under California law.

Before Mediation: Preparation

Selecting a Mediator

The parties must agree on a mediator. In employment disputes, mediators are typically retired judges, experienced employment attorneys, or professionals trained in dispute resolution. Key considerations include the mediator's experience with employment disputes, their communication style, and whether they are familiar with the specific area of law involved (e.g., wage and hour, discrimination, harassment).

Some mediators take a facilitative approach, focusing on helping the parties communicate and find common ground. Others are more evaluative, offering their assessment of each side's position and the likely outcome at trial. Either approach can be effective depending on the circumstances.

Mediation Briefs

Before the session, each party typically submits a mediation brief to the mediator. This is a confidential document that outlines the party's version of the facts, their legal position, and their goals for the mediation. Some briefs are shared with the other side; others are provided to the mediator only. The mediator will usually specify which format they prefer.

Understanding Confidentiality

Evidence Code section 1119 makes most communications during mediation inadmissible in noncriminal proceedings, with limited statutory exceptions. If you have retained counsel, your attorney will explain how these rules apply to your specific situation before mediation begins.

During Mediation: The Process

Opening Session

The mediation typically begins with all parties in the same room (or on the same video call). The mediator explains the process, sets ground rules, and gives each side an opportunity to make an opening statement. The opening statement is not an argument, it is an opportunity to tell the mediator and the other side what the dispute is about from that party's perspective.

Private Caucuses

After the opening session, the mediator usually separates the parties into private rooms (called caucuses). The mediator then moves between rooms, speaking with each party privately. During caucuses, the mediator may challenge each side's assumptions about the strength of their case, explore potential areas of agreement, convey settlement proposals and counterproposals, and identify the real interests underlying each party's position.

What is said in a private caucus is confidential between that party and the mediator unless the party gives permission to share specific information with the other side.

Negotiation

The core of mediation is negotiation. The mediator facilitates offers and counteroffers between the parties. This process can take several hours, and it is common for resolution sessions to last a full day. Some complex cases require multiple sessions.

Effective negotiation in mediation requires both parties to have a clear understanding of their goals and their alternatives. Each side should know the best outcome they are seeking, the minimum they would accept, and what happens if the mediation does not result in a settlement.

If Settlement Is Reached

Written Agreement

If the parties reach an agreement, the mediator or the attorneys will draft a written settlement agreement. Evidence Code Section 1118 governs oral agreements, and it sets four conditions that all have to be met. The oral agreement must be recorded by a court reporter or reliable means of audio recording; its terms must be recited on the record in the presence of the parties and the mediator, with the parties expressing on the record that they agree to the terms recited; the parties must expressly state on the record that the agreement is enforceable or binding, or words to that effect; and the recording must be reduced to writing and signed by the parties within 72 hours after it is recorded. That 72-hour deadline is the condition most easily missed, and missing it is not curable later.

For this reason, virtually all mediated settlements in employment cases are reduced to a written agreement signed by both parties. The agreement typically includes the settlement amount, payment terms and timeline, a release of claims, confidentiality provisions, non-disparagement terms, and any other terms the parties have negotiated (such as a neutral reference, record correction, or policy changes).

Enforceability

A signature is not enough on its own, and this is the single most important thing on this page. Because everything said and written in a mediation is confidential, a written settlement agreement prepared in the course of a mediation is itself inadmissible and protected from disclosure unless it escapes that protection — and an agreement a court cannot be shown is an agreement a court cannot enforce.

Evidence Code Section 1123 supplies the escape. A written settlement agreement prepared in the course of, or pursuant to, a mediation is not made inadmissible or protected from disclosure if it is signed by the settling parties and any one of these is satisfied:

• the agreement provides that it is admissible or subject to disclosure, or words to that effect (§ 1123(a));
• the agreement provides that it is enforceable or binding, or words to that effect (§ 1123(b));
• all parties expressly agree in writing, or orally in accordance with Section 1118, to its disclosure (§ 1123(c)); or
• the agreement is used to show fraud, duress, or illegality relevant to an issue in dispute (§ 1123(d)).

In practice this is why competently drafted mediated settlements contain a line saying the agreement is binding and enforceable and may be disclosed to enforce it. Leave that language out and you may hold a signed agreement you cannot put in front of a judge. If one party then fails to comply, a motion to enforce runs straight into the confidentiality bar. Check for it before you sign, and if it is absent, say so before the session ends rather than after.

If No Settlement Is Reached

If the parties cannot reach an agreement, the mediation ends without a resolution. This does not prevent the parties from continuing to negotiate after the session. In fact, it is common for mediators to continue facilitating discussions for days or weeks after the resolution session, and many cases settle in this post-mediation period.

If no resolution is reached, the parties retain all of their legal rights. The employee can file or continue an administrative complaint, pursue litigation, or seek other remedies. The confidentiality protections of the mediation remain in effect.

Types of Employment Disputes Commonly Mediated in California

Mediation is used across the full spectrum of employment disputes. The most common types include wrongful termination claims, discrimination claims under FEHA and Title VII, sexual harassment claims, retaliation claims, wage and hour disputes (overtime, meal and rest breaks, misclassification), disability accommodation disputes, leave law disputes (CFRA, FMLA), and severance and separation agreement negotiations.

Cost of Employment Mediation in California

Mediator fees in California vary widely depending on the mediator's experience and reputation, the complexity of the case, and the geographic area. Rates typically range from $300 to $600 per hour for experienced mediators, with some well-known mediators charging more. Many mediators charge a full-day or half-day rate.

The cost is typically split between the parties, though in some cases one party agrees to pay the full cost as part of the negotiation.

Compared to the cost of litigation, which can easily reach six figures, mediation costs are modest.

How Wiser Workplace Relates to Mediation

At launch, Wiser Workplace facilitates mediation through bilateral selection. The platform offers a structured intake of workplace concerns and a documented communication channel between an employee and the employer the employee identifies. By giving the parties a direct, contractually confidential channel at the earliest stage of a concern, the platform aims to surface workplace issues before they escalate to formal mediation, agency complaint, or litigation.

If the parties decide they want a neutral third party to mediate, they may bilaterally select a mediator from the platform's curated slate of independent California neutrals at launch, or they may engage a private mediator outside the platform through providers such as JAMS, AAA, or a qualified employment-law mediator they select. The platform does not assign mediators unilaterally; engagement occurs only when both parties agree.

Pre-engagement communications exchanged through the platform are protected by the contractual confidentiality terms in Section 7 of our Terms of Service. When the parties bilaterally engage a mediator from the platform's curated slate at launch, communications in the mediator-engaged session are additionally protected under the statutory mediation confidentiality framework in Evidence Code sections 1115 to 1128.

Wiser Workplace is not a law firm and does not provide legal advice. Both employees and employers are encouraged to consult with their own attorneys regarding their specific situations.

This article is for informational purposes only and does not constitute legal advice.