Mediation Message No. 60


On the heels of Cassel v. Superior Court (2009) 179 Cal.App.4th 152, which held that communications just before and during mediation between a client and his attorneys are not confidential (see Mediation Message no. 57 for a discussion of Cassel), comes Porter v. Wyner (2010) 183 Cal.App.4th 949, modified May 10, 2010, with a similar holding. The California Supreme Court granted a hearing in Cassel and it is almost a certainty that it shall also grant a hearing in Porter and consolidate the two cases for argument.

In Porter v. Wyner, clients sued their attorneys for, inter alia, breach of fiduciary duty, constructive fraud and negligent misrepresentation. These parties had been involved in a mediation in the underlying matter. In the instant matter, the lawyers’  motion in limine to bar the admission of evidence at the former mediation and to strike statements from the complaint made at that mediation were denied.

At the subsequent trial, the Porters testified to communications with the defendant lawyers during the mediation and also introduced documentary evidence of mediation communications. The lawyers, as both adverse witnesses and in rebuttal, discussed their mediation communications with the Porters.

Shortly after the jury returned a partial verdict for the Porters, the California Supreme Court issued Simmons v. Ghaderi (2008) 44 Cal.4th 570, which holds that the only exceptions to mediation confidentiality are express waiver by the parties and where due process rights may be violated. (See Mediation Message no. 45 for a discussion of Ghaderi.) The trial court misinterpreted Ghaderi and granted the defendants’ motion for a new trial. An appeal from that ruling led to the (2-1) decision in Porter v. Wyner which reversed the trial court’s order and instructed it to consider all of the mediation statements in ruling on the motion because that evidence should not have been excluded.

The core rationale of the majority in Porter v. Wyner is that mediation confidentiality is intended to “protect the free flow of communication and ideas” rather than “protect communications or agreements between a client and his own counsel should a conflict arise between them.” (Id. at p. 960.) The majority  reasoned that “A mediation is not conducted to resolve a dispute between a lawyer and the client the attorney represents. The communications in the attorney-client relationship like the ones at issue in this case fall outside those to which the confidentiality applies.” (Id. at p. 961.) The majority was also concerned that mediation confidentiality could be used as a shield “against (an) attorney for any breached side agreements, representations and deficiencies  that might take place or come to light during the mediation.” (Id. at p. 962.)

In discussing Cassel v. Superior Court, I speculated that the Supreme Court, even if it chose to protect consumers, will most likely hold that conferences between clients and their attorneys during, rather than before, mediation shall remain confidential. Porter v. Wyner’s subsequent assault on mediation confidentiality, which is better written than Cassel, causes me to re-evaluate that opinion. Although the Supreme Court has continually supported the concept of mediation and related mediation confidentiality, it must come to grips with the tension between a broad application of such confidentiality and its potentially negative impact on consumer protection. I am no longer going to hazard what the Court will do in resolving that conflict; I can opine only that the result, whichever way it goes, will have a major impact on the mediation process.

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, May 2010

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