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Attorney-Client Communications Related To Mediation Neither Discoverable Nor Admissible To Prove Legal Malpractice


On January 13, 2011, the California Supreme Court issued the opinion in Cassel v. The Superior Court of Los Angeles County, __ Cal.Rptr.3d __, 2011 WL 102710 (2011), holding that private discussions between a mediating client and his attorneys before or in the mediation were inadmissible under a mediation confidentiality statute in a subsequent legal malpractice suit by the client alleging that his attorneys gave him bad advice and coerced him to settle for less than the case was worth.

The trial court had granted a motion to exclude the evidence of the private attorney-client discussions before and during the mediation under the mediation confidentiality statute, Evidence Code §§ 1119, subds. (a) and (b). The Court of Appeal vacated the trial court’s order in a 2-1 opinion, concluding that the attorneys could not use the mediation confidentiality statute as a shield to exclude damages evidence of their private conversations with their client. The dissenting justice argued that the majority had crafted a judicial exception not permitted by the clear language of the statute.

On review, the Supreme Court agreed with the dissent and reversed the Court of Appeal judgment. The Court explained that the plain language of the statute protected as confidential and inadmissible any oral communications “for the purpose of, in the course of, or pursuant to a mediation . . . .”  The Court concluded that the expanded language covered “all discussions conducted in preparation for a mediation as well as mediationrelated communications that take place during the mediation . . . .”  The Court held that such communications between a mediation disputant and his or her own counsel are within the scope of the privilege even if they occur outside the presence of the mediator or other mediation disputants.

The Supreme Court held that the protection of the mediation confidentiality statute does not depend on the identity of the communicator, his or her status as a party or disputant or participant in the mediation, the communication’s nature, or its specific potential for damage to a party. The Court also rejected the majority’s assumption that a lawyer is not a “participant” in the mediation. The California Law Revision Commission comments to Evidence Code § 1122 allows for disclosure of mediation documents “upon agreement of all participants” to the mediation. The Court stated that the comment clearly included non-parties attending the mediation, including a spouse, an accountant or an insurance representative, within the meaning of the term “participants.” The Court found that there was no reason not to treat an attorney for a party appearing at a mediation as a “participant” within the meaning of the mediation confidentiality statutes.

The Supreme Court criticized the Court of Appeal’s attempt to create an implied exception to the mediation confidentiality in a lawsuit between a client and his or her attorney, similar to the exception to the attorney-client privilege in lawsuits between the attorney and client. Evidence Code § 958 contains an express exception to the attorney-client privilege for litigation between a client and his or her lawyer. In contrast, no such exception to mediation confidentiality appears in Evidence Code § 1119.

Furthermore, the Court reasoned that the purposes of the two statutory privileges are quite different. The Legislature’s choice of language in the mediation confidentiality statute reflected the intent to afford the maximum protection for mediation communications, in accord with the purpose of ensuring prospective participants that their interests will not be damaged by participating in mediation. The Court explained that both the language of the mediation statute and the purpose of the mediation privilege militated against creating a judicial exception that the Legislature chose not to include in the statute.

The Supreme Court noted that the Legislature is free to consider creating an exception to the mediation confidentiality statutes that would allow for use of mediation-related attorney-client discussions in a legal malpractice lawsuit. In a concurring opinion, Justice Chin even suggested that the Legislature might wish to consider an amendment of the statute to provide for an exception to confidentiality where everyone other than the attorney agrees to waive confidentiality.

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