Mediation Confidentiality

Possible New Mediation Confidentiality Legislation

Mediation and other forms of ADR are an important part of the litigation process. Colleague and friend, Kevin Coleman, wrote an article recently regarding possible new mediation confidentiality legislation. Like most things Kevin produces, I found the article interesting and helpful. Kevin allowed me to reprint the article for your consideration. Without further ado, here it is:

Mediation Confidentiality Proposed Tentative New Legislation

The California Law Revision Commission (CLRC) has made a tentative recommendation to the legislature to create an exception to mediation confidentiality that will allow communication from a mediation to be admitted into evidence in an attorney malpractice case.  The CLRC has written proposed legislation upon which it is accepting public comment.

By way of background for those not familiar with the issue, in Cassell v. Superior Court 51 Cal. 4th 113 (2011) the Court upheld mediation confidentiality, disallowing testimony in a legal malpractice action of conversations between client and attorney that took place during the course of a mediation.

Thereafter, the legislature tasked the CLRC with analyzing “the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct….” 2012 Cal. Stat. res. ch. 108 (ACR 98 (Wagner & Gorrell)).

After much research, many hearings and public comment, the CLRC has “tentatively concluded that existing California law does not place enough weight on the interest in holding an attorney accountable for malpractice or other professional misconduct in a mediation context.”

Importantly, the CLRC’s tentative proposed exception will still allow for open communication among the parties without fear that what they say during mediation will come back to bite them during a later proceeding.  The proposed evidence code section 1120.5, is narrowly written to only allow communication that took place during mediation in very limited circumstances related to attorney misconduct.

Also, the exception to mediation confidentiality cannot used be to void a settlement.

The exception can only be used it in 3 instances:  a State Bar disciplinary action, a cause of action seeking damages from a lawyer based on alleged malpractice, and, in an attorney-client fee dispute.  The exception to mediation confidentiality is limited to only apply to an allegation that an attorney breached a “professional requirement,” basically when acting as an attorney in a professional capacity, and only when doing so in a mediation context.

It won’t apply to a lawyer who is acting as the mediator.  A mediator still won’t be compelled to testify or provide documentary evidence.  So, Evidence Code 703.5 won’t be affected.

If the above criteria are met then only the portion of the communication necessary for the application of the exception could be admitted but not for any other purpose.

A precaution is built in – mediation participants would receive notice so that they can try to prevent improper disclosure of mediation communications.

The CLRC’s tentative recommendation can be found here, and the actual proposed legislation begins at page 145.

The CLRC is seeking comment on any aspect of its tentative recommendation.  Its next meeting is September 28 but would like comments by September 1.

Kevin C. Coleman has been settling cases as a professional mediator since 1996.  Contact Kevin here, or by calling 415-488-7609.   Kevin mediates throughout the San Francisco Bay Area, including San Francisco, Marin, Alameda, Contra Costa, Sonoma counties, and throughout California. I hope my newsletter provided you some insight.