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New California Law Requires Attorneys to Obtain Consent from Parties Regarding Mediation Confidentiality

Nicole Wilmet, February 27th, 2019

A new California law now requires attorneys to provide written disclosures to and obtain consent from their clients regarding California’s mediation confidentiality restrictions. The new law, effective January 1, 2019, applies to all civil cases except class actions. Under the new law, as soon as reasonably possible before a client agrees to participate in mediation or pre-mediation consultation, attorneys must provide their client with a written disclosure that identifies the confidentiality restrictions related to mediation. These written disclosures must be in at least 12-point font and be printed in the preferred language of the client. Additionally, these disclosures must be a single page document that is not attached to any other document provided to the client and be signed by both the attorney and the client.

The impetus behind this new law is to ensure that clients understand the expansive reach of mediation confidentiality. In California:

  • all communications, negotiations or settlement offers that occur during the course of mediation are confidential;
  • any statements made and writings prepared in connection with a mediation are not admissible as evidence or subject to discovery;
  • mediators may not be compelled to testify in any subsequent civil proceedings about any communication or conduct that occurred during or in connection with a mediation; and
  • a mediator’s report, opinion, recommendation, or finding about what occurred during the mediation may not be considered by a court.

In addition to improving understanding by requiring written disclosures, California’s new law is also a step by the legislature to address a policy concern identified by California courts regarding mediation confidentiality and attorney disciplinary action. See Cassel v. Superior Court, 51 Cal. 4th 113 (2011)(in which the Court held that a party was barred from disclosing private attorney communications, that were made during the course of a mediation, as evidence in his attorney malpractice suit).

In response to Cassel, in 2012 the California Legislature passed a resolution that directed the California Law Revision Commission (“CLRC”) to evaluate the relationship between mediation confidentiality and attorney malpractice. In 2017, after five years of studying the issue, the CLRC released its recommendation which encouraged creating an exception that would allow attorneys to be held accountable for mediation misconduct. Ultimately, the final language adopted by California’s new law permits the disclosure of communication in an attorney disciplinary proceeding to prove attorney compliance with written disclosures only if the communication does not disclose anything said or done during the mediation.