Can You Record Divorce Mediation in California?

If you are wondering whether you can record your divorce mediation in California, the starting point is Penal Code section 632, which makes it a crime to intentionally record a confidential communication without the consent of all parties to it. California's mediation confidentiality rules also generally keep what was said in a mediation out of court.

One spouse may worry that promises made in a session will be forgotten or denied later. Another may simply not yet trust the process, or the other spouse, and want a safety net. Both concerns are understandable, and both deserve a straight explanation of how the law treats a recording. That is what this article covers, for couples mediating in San Diego County and for couples anywhere in California who mediate online.

The short version is that two separate bodies of law apply at once. California's Evidence Code makes mediation communications confidential, and its Penal Code makes recording a confidential conversation without everyone's consent a crime. The court's own custody mediation follows a third set of rules, explained further below.

The Short Answer: Recording Without Everyone's Consent Can Be a Crime

Penal Code section 632 is the rule that directly addresses recording. It makes it a crime to record a confidential communication intentionally and without the consent of all parties to it. Whether a particular communication is a "confidential communication" under section 632 depends on the circumstances in which it is carried on; a mediation session in which the participants expect the conversation to stay among them may meet that definition.

Evidence Code section 1119 adds a second layer. It does not speak to the act of pressing "record." It says what was said and written in a mediation is confidential and generally cannot be used as evidence. Together, the two statutes mean that intentionally recording a confidential communication without everyone's consent is a crime, and that what is said in a mediation is generally not admissible in a later noncriminal proceeding.

Two terms come up throughout. Under Evidence Code section 1115, mediation is "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." The mediator is that neutral person. The mediator helps you and your spouse talk, and does not represent either of you or decide anything for you.

A mediation consultation, under section 1115(c), is "a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator." The confidentiality rules in section 1119 reach consultations as well as sessions.

These rules come from statute, not from courtesy or a mediator's personal preference.

What Evidence Code Section 1119 Actually Says

The core of California mediation confidentiality is Evidence Code section 1119. Except as the Evidence Code's mediation chapter otherwise provides, it says:

"(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

Subdivision (b) applies the same protection to writings prepared for, in the course of, or pursuant to a mediation or consultation. Subdivision (c) adds that "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

So the statute covers both spoken words and written material. A recording of a session would capture exactly the communications section 1119 keeps confidential, which is why a recording generally cannot be used to prove what someone said in mediation. "Discovery" here means the formal process of requesting evidence from the other side in a court case. Section 1119 shuts that door for mediation communications too.

Evidence Code section 1121 works alongside it. Neither the mediator nor anyone else may submit to a court or other adjudicative body any report, assessment, evaluation, recommendation, or finding by the mediator about the mediation, and the court may not consider one. The narrow exceptions are a report required by court rule or other law that states only whether an agreement was reached, or one all parties expressly agree to in writing or orally under section 1118.

The reason for all this is candor. The California Supreme Court has said that the Legislature broadly protected the confidentiality of things said and written in connection with a mediation "to encourage the candor necessary to a successful mediation" (Cassel v. Superior Court (2011) 51 Cal.4th 113). More on this topic appears in our guide to California mediation privilege.

One boundary matters here: sections 1119 and 1121 do not govern the court's own child custody mediation. That process has its own confidentiality rule, covered below.

California's Recording Law: Penal Code Section 632

Separate from the Evidence Code, Penal Code section 632 makes it a crime for a person, intentionally and without the consent of all parties to a confidential communication, to use a recording device to eavesdrop on or record it. The section covers a communication carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.

The statute defines a confidential communication as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto." It excludes public gatherings, public proceedings, and situations where people may reasonably expect to be overheard or recorded. Whether a private divorce mediation falls within the definition depends on those circumstances.

This is often called the all-party consent rule. Section 632 requires the consent of all parties to a confidential communication, so one spouse's permission alone is not enough, and neither is the mediator's.

The consequences are real. Section 632 provides for criminal punishment, including fines and possible jail or prison time, and repeat violations carry heavier penalties. Section 632(d) also says that evidence obtained by recording in violation of the statute is generally not admissible in any judicial, administrative, legislative, or other proceeding, except as proof in a case about the violation itself.

This rule operates on its own track: section 632 does not depend on the Evidence Code's mediation chapter, and both can apply at the same time.

The Exceptions: When a Written Settlement Agreement Can Be Disclosed

Confidentiality in mediation is strong, but it is not absolute. The clearest exception is Evidence Code section 1123, which concerns a written settlement agreement prepared in the course of, or pursuant to, a mediation.

Such an agreement is not made inadmissible or protected from disclosure by the mediation chapter if it is signed by the settling parties and any of these four conditions is met:

• The agreement says it is admissible or subject to disclosure, or words to that effect.
• The agreement says it is enforceable or binding, or words to that effect.
• All parties expressly agree in writing, or orally under section 1118, to its disclosure.
• The agreement is used to show fraud, duress, or illegality relevant to an issue in dispute.

Section 1123 speaks only of a written settlement agreement signed by the settling parties; it says nothing about a recording of a session. Section 1119(a) and (b) separately provide that, except as the chapter otherwise provides, evidence of anything said and writings prepared for the purpose of, in the course of, or pursuant to a mediation are not admissible or subject to discovery in the proceedings it lists.

For a spouse worried that agreements will be forgotten or denied, a signed written settlement agreement is the record that section 1123 addresses. Our step-by-step guide to a divorce mediation agreement explains how that document comes together, including the final declaration of disclosure that Family Code section 2105(a) generally requires before or at the time spouses agree on property or support issues other than temporary support, unless the court orders otherwise for good cause or the spouses mutually waive it under section 2105(d).

Court-Ordered Custody Mediation: A Different Set of Rules

The court's custody mediation is a separate process from private divorce mediation. Evidence Code section 1117(b) says the Evidence Code's mediation confidentiality chapter does not apply to proceedings under Chapter 11 of Part 2 of Division 8 of the Family Code, commencing with section 3160. Sections 1119, 1121, and 1123 do not govern it.

Under Family Code section 3160, each superior court makes a mediator available. Under Family Code section 3170, when a petition or other request to obtain or modify a custody or visitation order shows that custody, visitation, or both are contested, the court must set those contested issues for mediation. Domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council.

In San Diego County, family law cases are heard by the Superior Court of California, County of San Diego, and that court's mediation is child custody recommending counseling through its Family Court Services. Family Code section 3177 makes these proceedings private and confidential, a separate basis from Evidence Code section 1119.

There is a key difference in what the court's mediator can do. Under Family Code section 3183(a), except as provided in section 3188, the mediator may, consistent with local court rules, make a recommendation to the court about custody or visitation, if it is first provided in writing to the parties and their attorneys before the hearing. A mediator with that authority is called a child custody recommending counselor, and Family Court Services calls this person the Family Court Counselor. According to Family Court Services, if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides.

If custody is the sticking point between you and your spouse, the differences between the two tracks matter. Our article on private vs. court mediation compares them in more detail, and general self-help information is available from the California Courts website. Simple Divorce Mediation is a private practice and has no connection to Family Court Services or any government program.

What This Means in Practice for Couples in Mediation

Put together, the law points in one direction. A recording made without everyone's consent can be a crime under Penal Code section 632, and what is said in a private mediation is confidential under Evidence Code section 1119, except as the Evidence Code's mediation chapter otherwise provides. A mediator who recorded a session without the consent of all participants would face the same Penal Code exposure as anyone else, and would be capturing communications the Evidence Code keeps confidential.

The need behind a wish to record may be a trustworthy record of what was agreed. In private mediation, that record is the written mediated settlement agreement. Once signed, and when it meets a condition in section 1123, such as stating that it is enforceable or binding, it can be admitted or disclosed. Our divorce mediation checklist covers documents to gather along the way.

Either spouse may have a lawyer of their own, before, during, or between sessions. Under Evidence Code section 1129, except in the case of a class or representative action, an attorney who represents a spouse in mediation must give the client a printed disclosure of the confidentiality restrictions in section 1119, and obtain the client's signed acknowledgment, as soon as reasonably possible before the client agrees to participate. An attorney retained later must do the same as soon as reasonably possible after being retained.

If there has been domestic violence, coercion, or a protective order between you and your spouse, safety comes first, and mediating with the other spouse may not be appropriate. If you are in immediate danger, call 911.

To Talk With Simple Divorce Mediation About Confidentiality in Mediation

Questions about recording are questions about how confidentiality works in mediation. A consultation is a place to raise those questions. Simple Divorce Mediation mediates California divorces for couples in San Diego County and, online, for couples anywhere in California.

To talk with the practice about confidentiality in mediation, call Simple Divorce Mediation at 858-330-1378 for a joint mediation consultation.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-08.