Tuesday, December 12th, 2017

Attorney Considerations for Mediation Confidentiality After Cassel

January 24, 2013 by  
Filed under Newsletters

Mediation confidentiality had been fairly sacrosanct in California, and now even more so after last year’s state Supreme Court decision Cassel v. Superior Court, 51 Cal. 4th 113 (Cal. 2011). In the aftermath of Cassel, mediators and lawyers must address certain ethical questions regarding confidentiality and client disclosure.

Are There Exceptions to Mediation Confidentiality?

Mediation rules and procedures are found in the California Evidence Code § 1115-1128. Section 1119 Subdivision (a) provides that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled…”

The issue before the California Supreme Court in Cassel was the effect of the mediation confidentiality statutes on private discussions between a mediating client and attorneys who represented him in the mediation. Thus raising the question: Are attorney-client communications that occurred during mediation between the attorney and client alone protected from subsequent disclosure in a legal malpractice suit?

Facts and Procedural History of Cassel

Petitioner Cassel settled his case after a long mediation session with counsel at his side. Cassel thereafter became unhappy with the settlement and filed a malpractice lawsuit against his attorneys, seeking to introduce attorney-client communications during the mediation that he claimed evidenced bad advice, deceit and coercion. The defendant-attorneys moved to exclude all evidence of attorney-client communications that occurred during the mediation.

The trial court granted the defendant-attorneys motion, but the Court of Appeal reversed. It reasoned that the mediation confidentiality statutes are meant to protect the disputant from disclosure of admissions, not an attorney from legal malpractice allegations. The Court of Appeal believed that mediation confidentiality could not be used as a shield by attorneys to exclude damaging evidence in a malpractice suit.

CA Supreme Court Finds Mediation Confidentiality Statute Has No Exceptions

The Court rejected the reasoning of the Court of Appeal, reversed the ruling and excluded the evidence based on the plain language of Section 1119. Declining to add a judicially-created exception to the statute, the court noted that mediation confidentiality is not confined only to disputants, but to all “participants,” including disputants’ attorneys.

Not only does the statute cover unilateral mediation-related discussions between attorneys and clients, but it even includes communications that do not reveal anything about the content of the mediation proceedings. The court acknowledged that absolute confidentiality may hinder a client’s ability to prove a legal malpractice claim, but that would be a matter for the legislature to address.

After the Cassel decision, Assembly Bill 2025 called for an exception to mediation confidentiality for malpractice or breach of fiduciary actions. The bill was subsequently withdrawn for further study, so for now, the holding of Cassel remains the law in California.

Ethical Concerns and Disclosure Requirements for Attorneys

Cassel raises a few ethical questions for attorneys who are participating in mediation with clients:

  • What should an attorney communicate to his or her clients about the differences between attorney-client privilege and mediation confidentiality?
  • Should the client be specifically informed when mediation confidentiality communications begin and end?
  • Is the attorney bound to tell his/her client that anything that occurs “for the purpose of” or “pursuant to” mediation is subject to absolute confidentiality and the client could not use the conversations in a subsequent legal malpractice lawsuit?

The San Francisco Bay Area Mediation Office of Kevin C. Coleman offers both attorneys and their clients the opportunity to speak freely about their legal disputes without fear of statements later used against them in litigation. This candid and open environment protected by mediation confidentially encourages people to come together, listen to each other and settle their disputes in a cost-effective and emotionally satisfying manner.

Kevin Coleman is a certified mediator who performs mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma, outlying counties and throughout the state.

Contact Bay Area mediator Kevin Coleman online or by calling 415-488-7609.

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