MEDIATION CONFIDENTIALITY UPDATE
As noted in my March 2018 Mediation Message, a bill was introduced in January in the California legislature to add Evidence Code section 1129 which would require an attorney who represents a client in a mediation to inform the client of the confidentiality restrictions in Evidence Code section 1119. In its present form, SB 954 states that, except in class actions, an attorney who represents a client in a mediation, shall provide the client as soon as possible after the client has agreed to participate in the mediation with a written disclosure containing the confidentiality restrictions in Evidence Code section 1119 and that the client shall provide the attorney with a written acknowledgment that he or she has read and understands the confidentiality restrictions.
The following sentence is in subsection (d) of proposed section 1129: “Failure to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.” In other words, a client who has not been advised in writing of the confidentiality restrictions in section 1119 or who has not acknowledged in writing those restrictions, cannot move to set aside an agreement or settlement arrived at in the mediation.
The bill was approved by the State Senate with some amendments and is now in the Assembly, which is currently in recess. I have been told by State Senate staff that the Assembly will most probably approve the bill, which will then go back to the Senate for a procedural concurrence. All of this must be completed by August 31, 2018. It is then expected that Governor Brown will sign the bill, which will become law on January 1, 2019.
SB 954, should it become law, will not satisfy opponents of Cassel v. Superior Court (2011) 51 Cal.4th 113, which holds that mediation confidentiality applies to all communications at mediation, including those between an attorney and his or her client, and therefore prevents the admission of any of those communications into evidence in a subsequent malpractice action by the client against the attorney. On the other hand, SB 954 is a small step towards changing the current situation in which clients are not necessarily aware of the breadth or consequences of mediation confidentiality.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, March 2018