By: Guy O. Kornblum
San Francisco, California
Justice Marvin Baxter, one of the California Supreme Court's known conservatives has spoken on mediation confidentiality in an opinion. In this opinion, the Court held that the mediation privilege prevents a client from using testimony regarding what his lawyer told him or did during mediation in the instance the client sues that attorney for legal malpractice. The point is: a lawyer can commit malpractice during mediation and the court will not hear about it! Fair? Unfair? The reaction is divided. (See Kichaven, "Mediation Confidentiality and Anarchy: The California Nightmare," The Los Angeles Daily Journal, February 17, 2011, p. 4.).
In Cassel v. Superior Court, 51 Cal. 4th 113, 244 P. 3d 1080 (January 13, 2011), the plaintiff brought an action against attorneys who had previously represented him in a mediation. The client sued for malpractice, breach of fiduciary duty, fraud, and breach of contract. At trial, the attorneys made a motion in limine citing the statute relating to mediation confidentiality, (Cal. Evid. Code §1119(a), (b)) to exclude all evidence of communications between the client and the lawyer that were related to the mediation, including what was discussed in pre-mediation meetings and private communications between the client and attorneys during the actual mediation. The trial court granted the motion; the client sought a writ of mandate, which a Court of Appeal granted. The Supreme Court granted review and reversed the Court of Appeal.
Essentially the Supreme Court upheld a broad protection of mediation communications between a client and his lawyer. The Court held that mediation related communications and discussions between a client and his lawyer are confidential, and therefore were neither discoverable nor admissible for purposes of proving a claim of legal malpractice.
The Court further held that the application of mediation confidentiality statutes to legal malpractice actions does not implicate due process concerns so fundamental as to warrant an exception on constitutional grounds. In so holding, Justice Baxter said up front in the opinion, that we "... have repeatedly said that these confidentially provisions [the Cal. Evid. Code cited, supra] are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where there is a competing public policies may be affected. (Citations omitted.)" So there; that is that! Done, over.
This ruling could affect other types of tort and contract claims arising out of mediation practice, including mediator malpractice and insurance bad faith. Furthermore, the ruling has been criticized: 1) it prevents the truth from being known, and 2) it violates the basic principle that for every wrong there is a remedy. These are points that Mediator Kichaven makes in the cited article.
While Justice Baxter has surrounded the mediation process with an aura of strict confidentiality, his view contrasts with the Uniform Mediation Act (www.nccusl.org). Under this Act, a "mediation communication is a privileged." Section 4(a). However, Section 6(a)(6) states that there " ...is no privilege under Section 4 for a mediation communication that is...sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation." So, under that approach, the communications between Cassel and the lawyer are both discoverable and admissible. The communications would not be protected, and are available in a legal malpractice case, mediator misconduct action or insurance bad faith case. This makes a lot of sense to me. It also made sense to the National Conference on Uniform State Laws and those serving on the Advisory Committee of the Uniform Mediation Act and its Reporter, Professor Nancy Rogers of the Moritz College of the Law at Ohio State University (former dean of the law school), and the Associate Reporter, Professor Richard C. Reuben of the University of Missouri Law School.
If the rule were otherwise, and inline with what Justice Baxter and his colleagues (Justice Chin concurred "reluctantly") held, then one wonders whether the exception to confidentiality discourages mediation? Mr. Kichaven covers this point and quotes Professors Rogers and Reuben who seem to think not. Mr. Kichaven points out that settlement conferences held under the auspices of the court system are not subject to the mediation privilege in California [although there is confidentiality as to what takes place which prevents disclosure at trial of the offers, counters and discussions]. So the lawyer could be sued for malpractice for conduct at a court supervised settlement conference but not a private mediation. That does not seem to be right; it is illogical and cannot be rationally justified.
Coincidently a couple of weeks after this case was handed down, in comes a client to our office with a potential legal malpractice claim against his attorney who allegedly sold the client "down the river" at a mediation. The client did not find out about the details regarding the process until after the deal was done. Now the client is foreclosed from pursuing that claim - or even considering it. An injustice? Who knows, as the client will never find out; he cannot.
So what will happen now in California? My sense is that the trial lawyer groups in California will mount a campaign to the California Legislature to amend the statute and overrule Justice Baxter. With Governor Brown, a democrat and a lawyer there may be a good chance of altering this rule which puts the clamps on claims that arise from a client's participation in mediation. There is no reason to protect anyone from a sound legal claim if they do not do their job or breach their duties to those to whom they are owed. Professional responsibility requires just that - a responsibility to conduct ourselves in any process relating to our representation of a client. Mediation is a process which is designed to allow clients to explore a settlement alternative to trial. As such, there is no reason to allow attorneys protection from standards that must be met in such an important aspect of the overall litigation process.
I agree with Mr. Kichaven: the decision in Cassel is wrong, against the weight of thought and analysis as manifested by the Uniform Mediation Act, and needs to be overruled by the Legislature.
Let me hear your views to firstname.lastname@example.org.
Good Mediating. . .
 Mr. Kornblum has been a specialist is civil trials, arbitrations and appeals since graduating from Hastings College of the Law, University of California in 1966. He is the principal in his San Francisco based trial firm, Guy Kornblum & Associates. He is certified in Civil Trial Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of LCA. He is also a Life Member of the Multi-Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006. He is co-author of "Negotiating and Settling Tort Cases," published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America). His firm's website is www.kornblumlaw.com. Mr. Kornblum is a strong advocate for mediating his client's cases before going to trial or arbitration.
 See the discussion, "Confidentiality in Settlement Negotiations and Mediation," Kornblum and Garretson, "Negotiating and Settling Tort Cases," Chapter 12C (Thomson West Publishing Company and American Association for Justice, 2008).
 Cal. Evid. Code §1117(b)(2), which expressly excepts "settlement conferences" held pursuant to the California Rules of Court.
 Cal. Evid. Code §1152 relating to "Offers to Compromise."