Mediation Message No. 108

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 108

CASSEL IS STILL THE LAW

Cassel v. Superior Court (2011) 51 Cal.4th 113 holds that mediation confidentiality includes all communications at or in preparation for mediation between clients and their attorneys and, as a consequence, clients cannot sue their counsel for alleged acts of malpractice committed during mediation. Amis v. Greenberg Traurig LLP (March 18, 2015) B248447; 2015 Cal. App. LEXIS 247 reminds that Cassel is still very much the law regarding the impact of mediation confidentiality.

Amis sued Greenberg Traurig, his attorney, for malpractice after a settlement Amis entered into mediation that fell apart because he was unable to make scheduled settlement payments with the result that the opposing party moved for entry of a stipulated judgment, which caused Amis to declare bankruptcy.

Amis admitted that his alleged damages stemmed entirely from entering into the settlement agreement and that any communications he had with Greenberg Traurig regarding the settlement agreement occurred during mediation. Based on these undisputed facts, the trial court granted summary judgment for the law firm because, it concluded, the mediation confidentiality statutes preclude Amis from proving that his attorney’s acts or omissions caused his damages. Although the appellate court agreed that “[m]ediation confidentiality was never intended to protect attorneys from malpractice claims,” it affirmed the trial court’s order under the compulsion of Cassel and repeated Cassel’s advice that it is the legislature, and not the courts, which must fix this unintended consequence.

The only novel aspect of Amis is it rejected appellant’s attempt to circumvent mediation confidentiality by advancing inferences about his former attorney’s supposed acts or omissions during the underlying mediation. The appellate court reasoned that “To permit such an inference would allow Amis to attempt to accomplish indirectly what the statutes prohibit him from doing directly—namely, proving (Greenberg Traurig) advised him to execute the settlement agreement during the mediation. Further, insofar as there is no statutory exception to mediation confidentiality that permits (the law firm) to rebut the inference by showing what advice it actually gave Amis during mediation, the relevant authorities all counsel against permitting the inference to be drawn.”

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, March 2015

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