01 Mar Mediation Confidentiality Rules Amended
As most lawyers know, mediation proceedings are confidential, and California statutes govern their confidentiality. (See Cal. Evid. Code, §§ 703.5, 1115-1128.) Some lawyers, however, may not be aware of recent amendments to those confidentiality rules imposing obligations upon lawyers before the client agrees to participate in the mediation process.
Effective January 1, 2019, Section 1129 the California Evidence Code requires lawyers in all matters, except in class or representative actions, to “as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation” to provide a printed disclosure to the client explaining the confidentiality restrictions in Evidence Code Section 1119, and to obtain an acknowledgment signed by the client and attorney stating that the client has read and understands those confidentiality restrictions. Evidence Code Section 1119 contains the mediation confidentiality rules, which generally provide that any communications and writings made in connection with a mediation are confidential, and are inadmissible in any other proceeding. Section 1129 is very specific as to what the printed disclosure requirements must contain in form and substance, including a detailed summary of what mediation confidentiality is. The statute itself provides a disclosure exemplar for attorneys to use that is deemed to comply with the statute requirements.
In addition, the Legislature amended Section 1122 to include an additional provision, subdivision (a)(c), which allows for the admissibility of mediation communications (provided they do not disclose anything that was said or done during a mediation or an admission made in the mediation) to prove or disprove an attorney’s compliance with the requirements set forth in Section 1129. Such mediation communications can be used in any “attorney disciplinary proceeding” to determine whether an attorney complied with Section 1129.
These amendments come in the wake of strict rules of confidentiality and courts’ past decisions preventing the use of mediation communications in later proceedings, including claims against lawyers for malpractice or ethical violations. Clearly the California Legislature’s intent in passing these amendments was to ensure that clients understand the implications of excluding mediation communications in later proceedings, and to require lawyers to obtain their clients’ “informed consent” before they agreed to and participated in a mediation. Although these amendments are silent as to any potential penalties that may be imposed against a lawyer for failing to comply with Section 1129, based on Section 1122(a)(c), it is clear that a lawyer can no longer use the strict mediation confidentiality rules as a shield should a client claim that a lawyer failed to comply with the disclosure requirements under Section 1129.