Mediation Message No. 57


In granting review this month in Cassel v. Superior Court (2009) 179 Cal.App.4th 152, the California Supreme Court has another opportunity to either solidify its position that mediation confidentiality should be rarely breached (see Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rojas v. Superior Court (2004) 33 Cal.4th 407; Simmons v. Ghaderi (2008) 44 Cal.4th 570) or take the opposite tact that consumer protection should be an exception to such confidentiality.

In Cassel, a 2-1 decision, the appellate court majority held that discussions between Cassel and his attorneys two consecutive days immediately before and again on the day of a scheduled mediation, at which the case settled for $1.25 million, were not confidential and thus could be used by Cassel in a subsequent legal malpractice action against the attorneys for forcing him to accept the settlement rather than a higher amount that he had previously told the attorneys was what he wanted. The majority reasoned that the three meetings between Cassel and his attorneys outside the presence of opposing counsel and the mediator are not protected by mediation confidentiality because they “do not constitute oral and written communications made ‘for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation’ protected by section 1119, subdivisions (a) and (b) or communications by “participants” protected by section 1119, subdivision (c).” Id. at p. 164.

The Cassel majority relied on Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 which held, in part, that a conversation between opposing counsel prior to a mediation was not protected from disclosure by mediation confidentiality. (See Mediation Message no. 39 for a discussion of Wimsatt.) The majority also noted that, unlike the facts in Wimsatt, the communications at issue were made by the client to his own attorneys and not to an opposing party or the mediator. Id. at p. 162. The majority found as well that the attorneys were “not within the class of persons which mediation confidentiality was intended to protect from each other—the ‘disputants,’ i.e., the litigants—in order to encourage candor in the mediation process.” Id. at p. 163. Finally, the majority reasoned that the meetings between Cassel and his attorneys were for trial strategy purposes and not just to prepare for the mediation. Id. at p. 164.

The dissent in Cassel said that the majority position was inconsistent with well-established Supreme Court cases holding that exceptions to mediation confidentiality should be created only by the legislature;that Evidence Code section 1119, subdivision (a) covers statements that were made for the purpose of a mediation, even if not communicated to an opposing party or a mediator and had not been made during the course of a mediation (id. at pp. 165-166) and that it is the legislature’s and not the court’s role to protect clients from unscrupulous lawyers where the fundamental policies favoring mediation are not affected. Id. at p. 167.

The Supreme Court must now decide whether it shall continue its policy that mediation confidentiality allows for only rare exceptions (Simmons v. Ghaderi, supra, notes that there are only two: express waiver and where due process rights may be violated) or that the need to protect consumers is an additional reason for deviating from that policy. If the Court does not alter its position, it will adopt the approach of the dissent in the appellate court opinion and also probably disapprove Wimsatt to the extent that it is inconsistent. If the Court wants to protect clients from “unscrupulous attorneys,” it will probably hold that pre-mediation conferences between clients and their attorneys do not promote the purpose of mediation and, as a result, are covered only by the attorney-client privilege. Even if it adopts this latter position, the Court will most likely hold that similar conferences that take place during the mediation process are still confidential.

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, February 2010

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