06 Apr: Mediation Message No. 142

THE STATUS OF MEDIATION CONFIDENTIALITY Since Cassel v. Superior Court (2011) 51 Cal.4th 113 held that all communications by attorneys to their clients at all phases of mediation are confidential, even if the communications constitute legal malpractice, little has happened to change Cassel‘s holding. In immediate response to Cassel, AB 2025 was introduced in 2012 at the California Legislature. In short, it provided that mediation confidentiality was not a shield to an attorney in a legal malpractice action or State Bar disciplinary proceeding. The Legislature…

29 Jun: Mediation Message No. 108

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 108 CASSEL IS STILL THE LAW Cassel v. Superior Court (2011) 51 Cal.4th 113 holds that mediation confidentiality includes all communications at or in preparation for mediation between clients and their attorneys and, as a consequence, clients cannot sue their counsel for alleged acts of malpractice committed during mediation. Amis v. Greenberg Traurig LLP (March 18, 2015) B248447; 2015 Cal. App. LEXIS 247 reminds that Cassel is still very…

28 Dec: Mediation Message No. 101

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 101 ADMISSIBILITY OF MEDIATION SETTLEMENT AGREEMENTS In re Marriage of Daly and Oyster (2014) 228 Cal.App.4th 505 is a reminder that settlement agreements at mediation, if they contain the appropriate language, can be admissible in subsequent proceedings, notwithstanding Evidence Code section 1119, subd. (b), which states, in substance, that no writing prepared for, in the course of  or pursuant to a mediation is admissible or subject to discovery. Daly…

14 Jul: Mediation Message No. 69

MEDIATION CONFIDENTIALITY OVERVIEW Because of the recent Cassell v. Superior Court (2011) 51 Cal.4th 113 decision, it is timely and appropriate to review all of the Supreme Court’s rulings on mediation confidentiality. Mediators, pursuant to Evidence Code sections 1119 and 1121, may not report attorney misconduct or bad faith to jurists who have the underlying cases on their calendars. (Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1.) Foxgate was the first…

14 Jul: Mediation Message No. 68

FACEBOOK AND FEDERAL MEDIATION CONFIDENTIALITY If you saw “The Social Network,” skip this introduction; if not, and you’ve been hiding in a cave for the last few years, be advised that the Winklevoss twins and a third party sued Mark Zuckerberg, the Facebook founder, for allegedly stealing the concept from them. In turn, Facebook sued the Winklevosses. A California Northern District Court judge ordered everyone into mediation, during which the participants signed a confidentiality agreement…

01 Mar: Mediation Message No. 66

THE COURT STAYS THE COURSE ON MEDIATION CONFIDENTIALITY 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…

17 Oct: Mediation Message No. 60

SUPREME COURT MAY SHAKE UP MEDIATION CONFIDENTIALITY 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…

10 Aug: Mediation Message No. 57

MEDIATION CONFIDENTIALITY – ANOTHER SUPREME COURT CASE IS COMING 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…

10 Aug: Mediation Message No. 55

FEDERAL MEDIATION RULES REGARDING CONFIDENTIALITY Since I’ve written extensively about the impact of mediation confidentiality on California state court proceedings (see Mediation Messages 11, 17, 21, 34, 37, 39, 45 and 49), it’s only appropriate that I also discuss that principle as applied by the three California federal districts in their respective local rules. The Northern District, which has the most elaborate guidelines of the three California federal districts regarding the conduct of mediations, applies…

10 Aug: Mediation Message No. 39

Mediation Confidentiality Applies to any Writing or Statement that would not have Existed but for a Mediation Communication Wimsatt v. Superior Court (June 20, 2007) no. B196903, 2007 DJDAR 8961, which not surprisingly upholds the concept of mediation confidentiality, is an interesting case nonetheless for the breadth given such confidentiality and, at the same time, its invitation to the legislature that it create exceptions to the concept. Wimsatt and his law firm, Magaña, Cathcart &…