Mediation Message No. 66


In Cassel v. Superior Court (2011) S178914, 2011 DJDAR 658, the California Supreme Court was faced with two clear options – continue to hold that mediation confidentiality is to be liberally construed despite the surrounding circumstances or find that confidentiality should not be used to shield negligent attorneys from malpractice suits. The Court chose to stay the course and held that mediation confidentiality has few exceptions.

In Cassel, the petitioner filed a complaint against his former attorneys for breaching their professional, fiduciary and contractual duties because they had used allegedly bad advice, deception and coercion at a mediation to force him to settle the case. Petitioner wanted to use his conversations with the attorneys immediately preceding and at the mediation to prove his case. The trial court ruled that discussions between petitioner and the lawyers two days and one day before the mediation, in which mediation strategy and settlement amounts had been discussed, and all communications and conduct at the mediation between petitioner and the lawyers, were inadmissible. A majority of the Court of Appeal granted mandamus relief, reasoning that mediation confidentiality statutes are not intended to prevent a client from using communications with his or her lawyer outside the presence of all other mediation participants in a legal malpractice case against that lawyer.

Cassel began with a reminder that the Legislature had provided only express waiver by the participants as an exception to mediation confidentiality and that the only judicially crafted exceptions were where “due process is implicated” and “literal construction would produce absurd results, thus clearly violating the legislature’s presumed intent.” The Court also reviewed Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rojas v. Superior Court (2003) 33 Cal.4th 407; Fair v. Bakhtiari (2006) 40 Cal.4th 189 and Simmons v. Ghaderi (2008) 44 Cal.4th 570 which held, in their entirety, that confidentiality  has been broadly applied.

With Foxgate, Rojas, Fair and Simmons as a foundation, Cassel held that the purpose of Evidence Code section 1119, subdivision (a), which provides that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation … is admissible or subject to discovery …” extends to all oral communications at a mediation, even if they only take place between parties and their own attorneys.

Cassel further holds that petitioner’s discussions with his attorneys before the mediation concerning mediation strategy and settlement were confidential because section 1119, subds. (a) and (b) apply to all utterances and writings  “for the purpose of, in the course of, or pursuant to, a mediation.” Instead of attempting to create a bright line test for establishing when a pre or post-mediation utterance or writing is mediation related, and thus confidential, Cassel simply found that petitioner’s discussions with his attorneys came within the statute because they “concerned the settlement strategy to be pursued at an immediately pending mediation … (and) were closely related to the mediation in time, context, and subject matter …”

Cassel noted that the mediation confidentiality statutes, unlike Evidence Code section 958, which eliminates confidentiality protections otherwise afforded by the attorney-client privilege in suits between clients and their lawyers, have no exception for legal malpractice actions. The Court reasoned that the attorney-client and mediation confidentiality statutes achieve separate and unrelated purposes; the former “allows the client to consult frankly with counsel on any matter, without fear that others” may use these confidences whereas the latter “serve[s] the public policy of encouraging the resolution of disputes by means short of litigation.”

The Supreme Court then discussed the non-applicability of the two judicially crafted exceptions to mediation confidentiality to the instant facts. Due process was not a factor because “the mere loss of evidence” in a lawsuit for civil damages does not implicate a fundamental interest. Nor did the result produced by applying the plain terms of the statutes to the facts of the case create a result that was absurd or clearly contrary to legislative intent.

In sum, Cassel reversed the Appellate Court judgment and left petitioner with the inability to introduce evidence of his attorneys’ alleged misconduct immediately prior to and at the mediation. For the short term, Cassell’s extensive analysis of mediation confidentiality should foreclose further lower court attempts to carve exceptions to such confidentiality. Its impact, however, may not be lengthy because, while the Court chose not to take the fork in the road that would allow clients to use communications with their attorneys at mediations in subsequent malpractice actions, it unambiguously invited the Legislature to reconsider that issue. “Of course, the Legislature is free to reconsider whether the mediation confidentiality statutes should preclude the use of mediation-related attorney-client discussions to support a client’s civil claims of malpractice against his or her attorneys.” The Court’s less than subtle invitation may be hard for the Legislature to ignore; especially, if it also considers Justice Ming Chin’s reluctant concurrence that shielding attorneys from being held accountable for their incompetent or fraudulent actions during mediation “is a high price to pay to preserve total confidentiality in 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, January 2011

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