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Tuesday, January 8, 2019

New Mediation Law Keeps Confidentiality Inviolate But Mandates Lawyers Beef Up Disclosures

California Evidence Code 1129 is new law.  It protects mediation confidentiality, with the caveat to lawyers to beef up disclosures concerning confidentiality BEFORE a client enters mediation.

In a nutshell, the new law ensures that whatever happens in mediation, stays in mediation.  However, as a lawyer representing a client who is headed into mediation, you have a duty to advise them of their rights and waivers as to communications occurring during a mediation (in or outside that mediation room!)  You have to basically tell them - in mediation, confidentiality is inviolate, and sure, you can sue me for malpractice, but you cannot use anything said in the course of this mediation as evidence.  (This basically means you have no case).

Anyway, this new law came after years of debate following the Casel case, where some client who went through mediation tried to sue his lawyer for malpractice, saying he was forced into an uninformed settlement. After that case, the California legislature tried to pass a law that excluded attorney communications in mediation as confidential when related to a malpractice claim. But there was gross outrage from practitioners everywhere!!!  (For obvious reasons, if what you say in mediation can come back to haunt you, why in the world would ANYONE mediate?  They would just GO TO COURT like any normal person!)

The text of the new law is below. Evidence Code 1129.  Put this in a template and give to all of your clients going into mediation!

Notice of confidentiality restrictions

(a) 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.
(b) 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 subdivision (a).

(c) The printed disclosure required by subdivision (a) shall:
(1) Be printed in the preferred language of the client in at least 12-point font.
(2) Be printed on a single page that is not attached to any other document provided to the client.
(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.

(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a):

Mediation Disclosure Notification and Acknowledgment

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

* All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.

* Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.

* A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.

* A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.

NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.

[Name of Client] [Date signed]

[Name of Attorney] [Date signed]

(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.

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