By Andrew Servais
An amendment to the California Evidence Code on mediation confidentiality will require attorneys representing clients in connection with mediation to provide written disclosures to their clients about mediation confidentiality beginning January 1, 2019.
California law and public policy provide that all communications that take place in anticipation of and at mediation are confidential. “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualified bars disclosure of communications made during mediation absent an express statutory exception.” Even after mediation ends, communications and writings protected by the statutes are to remain confidential.
The restrictions on disclosure of mediation communications has been vigorously debated following the California Supreme Court’s decision in Cassel v. Superior Court (2011) 51 Cal.4th 113 confirming the broad scope of mediation confidentiality in holding a party to a mediation may not use confidential information obtained in the mediation to sue his or her attorney for alleged legal malpractice occurring at the mediation. (Cassel v. Superior Court, supra, 51 Cal.4th 113, 128 [Evidence Code section 1119 extends to “oral communications made for the purpose of or pursuant to a mediation, not just to oral communications made in the course of the mediation.”])
Although the new amendment does not provide any exception allowing disclosure in malpractice or other lawsuits, it will attempt to ensure clients understand the restrictions on mediation communications before participating in mediation by providing that except “in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.” (Cal. Evid. Code § 1129 (a).) Subdivision (d) specifies the “disclosure” language deemed to comply with subdivision (a) if it is (1) “printed in the preferred language of the client in at least 12-point font”; (2) “printed on a single page that is not attached to any other document provided to the client”; and (3) includes “the names of the attorney and the client and be signed and dated by the attorney and the client.”
As stated, the written disclosure must be provided “as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation…” Given the prevalence of mediation in civil litigation, providing the written disclosure sooner than later to allow for client inquiries is in the best interests of both the client and practitioner.
Andrew Servias is an attorney at law.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**