A MINOR MODIFICATION OF MEDIATION LAW IS ENACTED
Governor Brown signed a bill on September 11, 2018 amending Evidence Code section 1122 and adding section 1129. The totality of the new law requires attorneys to provide clients with a printed disclosure regarding the confidentiality restrictions in the law and to obtain a signed written acknowledgment from the client that he or she has read and understands those restrictions.
In part, section 1129 states that “except in class or representative actions, an attorney who represents a client in a mediation, shall provide the client as soon as possible before the client agrees 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.” (Subd. (a).) The written disclosure shall “be printed in the preferred language of the client in at least 12-point font” (subd. (c)(1)); “on a single page that is not attached to any other document provided to the client” (subd. (c)(2)) and include the name of both the client and the attorney (subd. (c)(3)). Subdivision (d) also provides the acceptable language of the disclosure which includes informing the client where the mediation confidentiality laws can be found, the scope of mediation confidentiality and that, since all communications with the attorney in preparation of and during the mediation are confidential, they “cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.” The disclosure language shall then add, “Note: This disclosure and signed acknowledgement does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.”
Section 1122, as amended, and new section 1129 raise the following questions:
- What has this new law accomplished? Very little; it only requires attorneys to advise their clients about the scope and purpose of mediation and to receive the clients’ acknowledgements of that disclosure.
- Does this new law change the scope of mediation confidentiality?
- If mediation confidentiality has not been affected, what was the reason for the new law? Since the legislature couldn’t get various interest groups to agree to substantive changes in confidentiality, I suspect that it believed something was better than nothing.
- When must the disclosure be provided to the client? “(A)s soon as possible before the client agrees to participate in the mediation” (Section 1129, subd. (a).)
- Can the disclosure language and client acknowledgement be in the fee agreement? No, they cannot be in the fee agreement because they must be in a single page that is not a part of any other document. (Section 1129, subd. (c)(2).) Further, the disclosure shall be given before the client agrees to participate in a mediation and that event ordinarily occurs after the fee agreement has been executed.
- What is the responsibility of an attorney who is retained after the client has agreed to a mediation? The attorney must comply with the disclosure and acknowledgment requirements as soon as reasonably possible after being retained. (Section 1129, subd. (b).)
- What happens if an attorney does not advise the client of mediation confidentiality or the client does not sign the advisement form? An attorney’s failure to comply with either the disclosure or acknowledgment requirements shall have no impact on the civil action at issue because, despite such failures, the client cannot move to set aside an agreement or settlement prepared in the course of, or pursuant to, a mediation. (Section 1129, subd. (e).)
- What is the consequence, if any, for an attorney’s failure to advise the client of mediation confidentiality or to receive the client’s written acknowledgement of that disclosure? Any communication or writing concerning that failure to comply, and which “does not disclose anything said or done or any admission made in the course of the mediation.” may be used in a disciplinary proceeding “to determine whether the attorney has complied with section 1129.” (Sec. 1122, subd. (a)(3).)
- Is there a positive “spin” to this new law? These changes will not appease 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, as a result, 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, section 1129 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