The California Supreme Court in Cassell v. Superior Court (Wasserman, Comden, Casselman & Pearson LLP) (2010) 51 Cal.4th 113, held that the mediation confidentiality encompasses discussions between the attorney and the client, and therefore, the confidentiality provisions of Evidence Code 1115 barred any evidence of what was discussed between the lawyer and the client before and during the mediation. In effect, the Court’s holding barred any sort of malpractice action against the lawyer related to conduct that occurred before and/or during the mediation.
Since that ruling, the California Judicial Council has worked on a proposed change to address the holding in Cassell. The California Legislature enacted Evidence Code 1129 which now requires certain disclosures to be made in writing to a client as soon as reasonably possible before the client agrees to participate in mediation.
Pursuant to Evidence Code 1129, the printed disclosure must be (1) 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; and (3) include the names of the attorney and the client and be signed and dated by the attorney and the client. Evidence Code 1129 also includes the required language that must be included in the written disclosure. Of note, a lawyer’s failure to comply with this section will not be a basis to set aside any agreement prepared in the course of a mediation.
It is unknown at this point whether a lawyer’s failure to comply with Evidence Code 1129 will open the door to malpractice claims arising out of a mediation. What is clear, though, is the Legislature’s directive to lawyers to make sure that their clients understand the mediation process and are fully advised of their rights.
*Marshall Whitney and Mandy Jeffcoach are partners with the law firm of Whitney, Thompson & Jeffcoach LLP and are Certified Legal Malpractice Law Specialists by the State Bar of California, Board of Specialization. They regularly provide counseling to law firms and lawyers and can be reached at (559) 753-2550 or firstname.lastname@example.org & email@example.com.