THE STATUS OF MEDIATION CONFIDENTIALITY
Since Cassel v. Superior Court (2011) 51 Cal.4th 113 held that all communications by attorneys to their clients at all phases of mediation are confidential, even if the communications constitute legal malpractice, little has happened to change Cassel‘s holding.
In immediate response to Cassel, AB 2025 was introduced in 2012 at the California Legislature. In short, it provided that mediation confidentiality was not a shield to an attorney in a legal malpractice action or State Bar disciplinary proceeding. The Legislature then referred the matter to the California Law Revision Commission (CLRC) for study, review and recommendations.
After twenty-four public meetings and at least one earlier proposal, the CLRC proposed, in part, in January 2018 that attorney statements at mediation, both written and oral, can be used in a claim for damages due to legal malpractice, a State Bar disciplinary proceeding or an attorney-client fee dispute; the exception did not apply in resolving a claim relating to enforcement of a mediated settlement agreement, such as a claim for rescission or suit for specific performance; the exception did not apply to misconduct by a mediator; only that portion of the communication necessary for application of the exception was admissible and mediation participants would receive reasonable advance notice to take steps to prevent improper disclosure of mediation communications.
No bill concerning exceptions to mediation confidentiality was introduced in the California Legislature by the February 16, 2018 filing deadline, or since AB 2025 in 2012. This non-action may reflect the strong opposition to changing the status of such confidentiality. Nonetheless, it should be noted that the CLRC has continuing authority over the issue of mediation confidentiality and, unless that authority is withdrawn by the Legislature, the Commission may continue to make proposals concerning the subject.
On January 30, 2018, State Senator Robert Wieckowski, an attorney and Democrat from Fremont California, introduced Senate Bill 954 to add Evidence Code Section 1129 which would require attorneys representing clients participating in a mediation or a mediation consultation to inform those clients of the confidentiality restrictions in Evidence Code section 1119 and to obtain their informed written consent to the restrictions. Stay tuned.
Copyright Michael D. Marcus, March 2018