Coincidentally, the Second District Court of Appeal in California issued a decision yesterday in a case called Cassel v. Superior Court on this very topic. No, not sex tapes! Mediation confidentiality. Cassel filed a legal malpractice action against his attorneys, claiming that they improperly forced him to settle a case for less than he told them was acceptable. The attorneys sought to exclude evidence of conversations between them and Cassel, which were held during the course of a mediation, but outside the presence of the opposing party and the mediator. Of course such conversations were subject to the attorney-client privilege (Evidence Code Section 950-962), but that privilege generally disappears when the client sues the lawyer for malpractice. Evidence Code Section 958. It is also well established that you cannot take a fact that is known outside the mediation room and create an obligation by other participants not to discuss it merely by discussing that fact in mediation. Evidence Code Section 1120 provides: "Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation." So the only way that mediation confidentiality comes into play is if the conversations fall within the scope of Evidence Code 1119. That section provides as follows:
Except as otherwise provided in this chapter:The communications that Cassel's former attorneys sought to exclude would appear to fall within the literal language of this statute. However, the court held that these communications were not shielded, because they were made outside the presence of and not communicated to the opposing party or the mediator, and therefore reveal nothing about the substance of the mediation. The court repudiated or perhaps distinguished a statement from Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (2007), which seemed to suggest that clients give up all claims for legal malpractice that arise from the mediation process. The difference was that in Wimsatt, the alleged malpractice occurred in the attorneys' communications with opposing counsel, not the conversations between attorney and client.
(a) No evidence of anything said or any admission made for the
purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation is admissible or subject to discovery, and
disclosure of the evidence shall not be compelled, in any
arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which, pursuant to law, testimony can be
compelled to be given.
(b) No writing, as defined in Section 250, that is prepared for
the purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation, is admissible or subject to discovery, and
disclosure of the writing shall not be compelled, in any arbitration,
administrative adjudication, civil action, or other noncriminal
proceeding in which, pursuant to law, testimony can be compelled to
(c) All communications, negotiations, or settlement discussions by
and between participants in the course of a mediation or a mediation
consultation shall remain confidential.
The question arose in some e-mail discussion of this case yesterday among some SCMA members whether this new decision poses a threat to the principle of mediation confidentiality, potentially imperiling mediators who are generally shielded from testifying about what occurs in the mediation context; as well as whether this decision could act as a disincentive for parties to participate in mediation. (Of course another interesting question of whether Carrie Prejean properly invoked mediation confidentiality in her interview with Larry King must be answered in the negative. If she signed a confidentiality agreement in connection with her settlement, that might restrict her ability to discuss the settlement, but Evidence Code Section 1119 only applies to the admissibility or discoverability of communications made in the course of mediation. It does not bar participants from discussing their motivations for entering into a settlement outside of the context of another court proceeding. But maybe we should excuse Carrie for mixing up, if that is what she did, any confidentiality agreements to which she may be subject, and the provisions of the Evidence Code regarding mediation confidentiality.) Anyway, I at least would not be unduly concerned about the potential erosion of mediation confidentiality represented by Cassel and I doubt that that decision would operate as a serious disincentive for attorneys or parties to participate in mediation.
This case only holds that Section 1119 cannot be used by lawyers as a shield in a legal malpractice action, to exclude evidence of statements made outside the presence of the mediator and the opposing party. If a lawyer and client are discussing the possible settlement of a lawsuit outside of any mediation, there is no privilege that would apply in a subsequent malpractice action. Participating in a mediation may not give the attorney much in the way of extra protection protection after the Cassel case, but it does not put the attorney at any greater risk of having his statements to his clients used against him in a malpractice action. We have fairly broad protection for mediation confidentiality in California, and it does not seem to have been severely narrowed by Cassel.