The following is a guest blog post by Teddy (Theda) Snyder. Ms. Snyder is based in Los Angeles and conducts civil and workers compensation mediations throughout California.
Starting January 1, 2019, attorneys must ask clients to acknowledge in writing that they have been fully informed about the rules of mediation confidentiality. SB 954 amends Evidence Code §1122 and adds §1129 (Stats 2018, ch 350). You can create your own form, but you’ll probably use a version of the “safe harbor” form in §1129.
Attorneys are now required to obtain the client’s signature as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation. If the attorney is hired after the client has agreed to mediate, the attorney must get the client’s sign-off as soon as reasonably possible after being retained. If the client signed off on a disclosure with prior counsel, new counsel should get another acknowledgement naming the current attorney. All clients should sign it.
The disclosure must be on a single page not attached to any other document and must be printed in the preferred language of the client in at least 12-point font. It must include the names of the attorney and the client and be signed and dated by the attorney and the client.
Attorneys who regularly mediate should consider obtaining the disclosure at the beginning of the representation. The safe harbor form doesn’t limit the disclosure to a single case. Nonetheless, attorneys working under an ongoing or tripartite relationship may wish to add language to make it clear that the client is executing a blanket sign-off.
Importantly, the statute explicitly states that the “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.” Also, the disclosure rule doesn’t apply to class actions.
As those who’ve watched this issue know, the new law is the result of years of tussle over the issue of whether and how much to breach the basic rule of mediation confidentiality. This followed the decision in Cassel v Superior Court (2011) 51 C4th 113.
In Cassel, a client was hobbled in his malpractice suit against his former attorneys. Cassel claimed they gave bad advice and forced him to settle for less than he wanted. The supreme court barred evidence of that advice, which occurred as part of the mediation process. The court added that “it is for the Legislature to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so.”
Hearings were held up and down the state to consider versions of an amendment to include an exception for a client’s malpractice claim. The efforts met a wall of opposition.
The outcome is simply a disclosure law. It ensures that the attorney tell the client about the strict nature of mediation confidentiality:
• 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.
Failure to make the disclosure can subject an attorney to a disciplinary proceeding. See Evid C §1122(a)(3). The safe harbor form includes a “note” clarifying that signing the disclosure form doesn’t prevent a client from suing for malpractice. But the body of the form makes it pretty clear that communications within the mediation confidentiality rule can’t be used as evidence.
Check out Teddy Snyder speaking in CEB’s webinar Effective Mediations: Maximizing the Value & Negotiation Tips from the Experts, available On Demand.
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