A co-defendant wants the demand you served on someone else. Now what?
Two answers and a trade. They cannot make you produce it. You are free to share it, because it is your writing and the statute gates disclosure on your consent alone. But sharing is not free: the same subdivision that lets you disclose takes that letter out from under mediation confidentiality. Which is why the privilege analysis has to come first. It does not just clear the field, it prices the decision, and the version of this question most practitioners carry around has the price at zero.
- What the demand is
- A mediation communication before the mediation ever convenes. Protection attaches to writings made for the purpose of a mediation, not just during one Evid. Code 1119(a), (c); Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137
- Can they compel it
- No. Mediation writings are not subject to discovery, there is no good-cause override, and courts cannot craft exceptions Evid. Code 1119(b); Rojas v. Superior Court (2004) 33 Cal.4th 407; Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1
- Does sharing spill over
- No. Waiver is express-agreement-only and one participant cannot waive for the others, so nothing else in the mediation is touched, the co-defendant's own demand included Simmons v. Ghaderi (2008) 44 Cal.4th 570; Doe 1 v. Superior Court (2005) 132 Cal.App.4th 1160
- The one lawful gate
- Your own consent, in writing. A writing prepared by fewer than all participants may be disclosed if its preparers expressly agree in writing, or orally under section 1118, and it reveals nothing said or done in the mediation itself Evid. Code 1122(a)(2)
- What sharing costs
- That letter stops being a mediation writing. Section 1122 says a writing meeting the gate is "not made inadmissible, or protected from disclosure, by provisions of this chapter" Evid. Code 1122(a), read against the opening words of 1119
- What still protects it
- Sections 1152 and 1154, which sit in a different chapter and are untouched by a 1122 disclosure. They bar proving liability, or the invalidity of the claim, and nothing else Evid. Code 1152, 1154. Chapter 3, not the mediation chapter
On this page
The protection attaches before anyone sits down
A demand written for a scheduled mediation is inside the tent from the moment it is written.
Evidence Code 1119(a) protects anything said or any admission made "for the purpose of, in the course of, or pursuant to" a mediation, and 1119(c) keeps communications between participants confidential. The first phrase is the one that matters here. Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 applied the protection to mediation briefs and pre-mediation attorney emails, and Cassel v. Superior Court (2011) 51 Cal.4th 113 described the scheme as absolute, reaching mediation-related communications even at the price of losing valuable civil evidence.
So the demand does not become protected at the mediation. It was born protected. That cuts both ways: the protection is real, and it belongs to the process rather than to any one party's tactical preferences.
Nobody can make you produce it, and an indemnity claim changes nothing
There is no motion that gets a co-defendant this document over your objection.
Evidence Code 1119(b) puts mediation writings beyond discovery. Rojas v. Superior Court (2004) 33 Cal.4th 407 rejected any good-cause override, and Foxgate, itself a construction defect case, holds that courts have no authority to craft exceptions the Legislature did not write. A pending indemnity cross-complaint between the defendants does not appear anywhere in the statutory exceptions, so it moves nothing.
The practical consequence: if you would rather not share, "no" is a complete answer and requires no supporting authority beyond the label already on the letter. There is nothing to meet and confer about.
If you want to share it, the statute already said yes
Your demand is your writing, and 1122(a)(2) gates its disclosure on your consent alone.
Evidence Code 1122(a)(2) permits disclosure of a writing prepared by or on behalf of fewer than all mediation participants where those participants "expressly agree in writing, or orally in accordance with Section 1118, to its disclosure," and the writing "does not disclose anything said or done or any admission made in the course of the mediation." A demand served before the mediation convenes cannot disclose anything said or done in a session that has not happened. The plaintiff wrote it; the plaintiff can consent to showing it to another participant.
Note the form requirement, because it is easy to blow past. The agreement has to be in writing, or oral in the specific way section 1118 describes. Saying yes on a phone call is not the gate. Put the consent in the transmitting email and the paperwork takes ten seconds.
Two cases keep the damage contained. Simmons v. Ghaderi (2008) 44 Cal.4th 570 holds that waiver of mediation confidentiality happens only by the express agreement the statutes describe, never by conduct, implication, or estoppel, so sharing one letter does not erode the protection around anything else. Doe 1 v. Superior Court (2005) 132 Cal.App.4th 1160 holds that one participant's unilateral consent cannot waive the rights of the others, so your disclosure does not strip the co-defendant whose demand you shared. The exposure is the one letter you chose to hand over, and it stops there.
What still protects the letter after you share it, and it is not 1119
Once section 1122 lifts the mediation chapter, the residual protection is Evidence Code 1152 and 1154, and the reason they survive is structural: they sit in chapter 3, and 1122 only disapplies "provisions of this chapter," meaning chapter 2. A 1122 disclosure cannot reach them.
What they give you is narrower than 1119 and still worth having. Section 1154 makes evidence that a person "offered or promised to accept a sum of money ... in satisfaction of a claim, as well as any conduct or statements made in negotiation thereof," inadmissible to prove the invalidity of the claim or any part of it. Section 1152 does the mirror image for a defendant's offer, inadmissible to prove liability. Both are purpose-limited admissibility rules, not discovery bars, so they do not stop a recipient from using the number to think with. They stop it becoming an exhibit for those two purposes.
Practical upshot: before you share, 1119 is the answer and it is close to absolute. After you share, 1154 is the answer and it is narrower. Cite both, and know which one you are standing on.
The carve-out that arrives later: good faith settlement
Settlement terms surface at the 877.6 stage. The demands that produced them do not.
Once a defendant settles and moves for a good faith determination under CCP 877.6, the calculus shifts, but only for the deal itself. Mediplex of California, Inc. v. Superior Court (1995) 34 Cal.App.4th 748 requires settling parties to produce the written settlement agreement to a non-settling defendant contesting the motion, because the contesting party carries the burden on the Tech-Bilt factors and cannot carry it blind. Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865 draws the line precisely: the court may consider the settlement terms, and may not consider statements made in the mediation that produced them.
So a defendant who obtains a co-defendant's demand today cannot use it at the 877.6 hearing tomorrow to argue the settlement was disproportionate. The number they will eventually be entitled to is the settlement figure, not the ask that preceded it.
The actual decision is strategic, so decide it that way
Once the law clears the field, the question is what disclosure buys and what it anchors.
Ask why they want it. In the common pattern, the requesting defendant holds an indemnity cross-complaint against the co-defendant and wants your demand as ammunition to push that carrier's contribution up before the mediation. That motive usually helps the plaintiff, since it recruits a second advocate for the same dollars. The countervailing risk is anchoring: hand a defendant the demand you served on its co-defendant and it will subtract, allocate, and treat your own apportionment as a ceiling for weeks before anyone is in the room.
Before you answer, run four questions:
1. How much is actually still secret? If your demands describe each
other, as concurrent demands often do, the requesting party may already be
able to reconstruct the number, and you are pricing a disclosure worth very
little.
2. Do the demands read well side by side? Separate demands frequently
overlap on a shared scope, and the first use a recipient makes of the full set
is to add the totals and cry double counting. Fix the framing before anyone
sees the letters together.
3. Is there a middle path through the mediator? Offering to have all
demands circulated by the mediator captures the alignment benefit, denies any
one party weeks of private anchoring, and keeps sequencing in neutral
hands.
4. What are you getting back? Consent under
1122(a)(2) is yours to give, which means it is yours
to trade. An allocation position, a coverage posture, or reciprocal
disclosure are all fair asks.
What breaks if you get this wrong
Four mistakes, and the last one is a statute doing the opposite of what it is usually cited for.
Using a shared demand offensively at the good faith settlement hearing
Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865 lets the court consider the settlement terms and not the mediation that produced them, so a contesting defendant who builds its Tech-Bilt showing on the demand is building on material the court may not weigh. Where the demand was never shared, Evid. Code 1119 is the answer on its own. Where it was shared under 1122(a)(2), the mediation chapter no longer bars it and the argument runs through 1154 instead, which blocks using the demand to prove the claim is invalid. Different route, and on this use the same destination.
Refusing on a waiver theory, or sharing on one
Both directions misread Simmons, 44 Cal.4th 570. Disclosure does not impliedly waive anything, so "we cannot share it without blowing the privilege" overstates the cost: the exposure is the one letter, not the mediation. And a recipient's "they shared one, so the rest is fair game" is wrong under Doe 1, 132 Cal.App.4th 1160, because one participant's consent does nothing for anyone else's writings. The only mechanism in the scheme is express agreement under 1122, and it reaches exactly as far as the writing it names.
Reaching for 1152 and 1154 while 1119 is still available
They bar particular uses at trial; they do not bar discovery or disclosure, and arguments built on them invite carve-outs the 1119 scheme does not have. While the demand is still unshared, resist a co-defendant on 1119 and cite 1152 and 1154 as the backstop. Reverse that order only after a 1122 disclosure has made the backstop the only thing left.
Letting the recipient put the mediation in front of a later tribunal
This is what Evid. Code 1128 actually does, and it is worth knowing because it is routinely cited for things it does not say. It makes any reference to a mediation during a subsequent trial "an irregularity in the proceedings" for new trial purposes under CCP 657, and grounds to vacate or modify the decision in any other subsequent noncriminal proceeding where the reference "materially affected the substantial rights of the party requesting relief." It is a remedy for the reference, not a shield that keeps a disclosed document inadmissible.
One drafting habit that makes all of this work
The label on the demand is what puts it inside the 1119 scheme without an argument.
A demand that recites on its face that it is a mediation-privileged communication under Evidence Code 1119 and 1154, served ahead of an identified, scheduled mediation, walks into Wimsatt's "for the purpose of" language with no daylight. A bare demand letter with no scheduled mediation behind it has only the thinner 1152 and 1154 layer. If your practice is to demand before mediating, date the mediation first and label the letter accordingly.