Since 1997, California Evidence Code section 1119 and following have barred the admissibility, discovery or compelled disclosure of statements, admissions or writings made “in the course of, or pursuant to, a mediation or mediation consulting” with only a few exceptions largely involving the parties’ consent, and further providing that “communications, negotiations or settlement discussions by and between participants in the course of a mediation or mediation consultation shall remain confidential.”
For a long time, it has been the practice of mediators to so notify the parties to a mediation and, often, to require them to sign a confidentiality agreement. A typical example of one of these agreements (the one used by Bruce Nye Mediation) is here.
On September 11, Governor Jerry Brown signed Senate Bill 954, effective January 1, 2019, which is designed to increase the likelihood of confidentiality rules being followed.
More after the jump.
Design of this change to the law began with the Cal Supremes’ decision in Cassel v. Superior Court (2011) 51 Cal.4th 113. Cassel was a legal malpractice case. The plaintiff settled a case during mediation, then sued his attorneys for malpractice, breach of fiduciary duty, fraud and breach of contract. The Supremes held that the mediation confidentiality statutes were such that all evidence of attorney/client communications just before and during the mediation process were inadmissible.
In response, the Legislature directed the California Law Revision Commission (“CLRC”) to study the relationship between mediation confidentiality and attorney malpractice and to make a recommendation. After a 5 year study the CLRC recommended a statutory change to permit disclosure of otherwise confidential communications in a disciplinary proceeding of the State Bar or a cause of action for damages based upon a claim of malpractice, if the evidence was relevant to prove or disprove an allegation. But that recommendation was strongly opposed by attorneys, mediators and judges. So instead, State Senator Bob Wieckowski (D. Fremont) came up with Senate Bill 954, which above all else requires mediating clients to be informed in advance of the mediation confidentiality requirements. Specifically, newly added Evidence Code section 1229 provides that, except for class actions,
[A]n 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.
And
An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in [the preceding section].
And curiously, the bill describes the specific format for the notification and text of the notification that will deemed compliant: minimum 12-point font, printed on a single page not attached to any other document provided to the client, including the names of the attorney and client and dated signatures by both, and all of the text in this form, now being used by Bruce Nye Mediation.
Finally, while not addressing attorney malpractice, the bill adds one minimal attorney misconduct element to the confidentiality exceptions, amending Evidence Code section 1122 to permit admissibility and disclosure of a communication or writing prepared for the purpose of, in the course of, or pursuant to a mediation or mediation consultation if
The communication, document, or writing is related to an attorney’s compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.
So what is the significance? From the point of view of a mediator, (Bruce Nye, aka CalBizLit), it is a good thing to see the legislature continue to understand the importance and valued of mediation confidentiality. And it is also good to see the legislature make clear that it is the attorneys’ obligation to ensure that mediating clients know about the confidentiality.
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