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CALIFORNIA SUPREME COURT REAFFIRMS STRICT – AND BROAD – APPLICATION OF MEDIA CONFIDENTIALITY (Marx Mediation Memo #2) By Peter J. Marx, Esq.

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February 10, 2015 by AmyN

Confidentiality is considered essential to mediation. This is reflected not only in Evidence Code mediation confidentiality requirements, but also in California Supreme Court decisions which have consistently upheld strict application of such requirements. Evidence Code 1115 et seq., and see, e.g., Simmons v. Ghaderi, 44 Cal.4th 570, 80 Cal. Rptr. 3d 83 (2008); Foxgate Homeowners’ Assn. v. Bramalea California, Inc., 26 Cal.4th 1, 108 Cal. Rptr. 2d 642 (2001). But for an indication of the full, extensive scope of mediation confidentiality see Cassel v. Superior Court, 51 Cal.4th 113, 119 Cal.Rptr.3d 437 (2011), which I believe is essential reading for any attorney who utilizes mediation.

Cassel arose from a previous case, in which Mr. Cassel had agreed to a settlement reached through mediation. Thereafter, he sued his counsel for malpractice, breach of fiduciary duty, etc., complaining, in the words of the California Supreme Court, “that by bad advice, deception, and coercion, the attorneys, who had a conflict of interest, induced him to settle for a lower amount than he told them he would accept, and for less than the case was worth.” However, the court held that evidence of private discussions between Mr. Cassel and his attorneys immediately preceding and during the mediation, concerning mediation settlement strategies and efforts of counsel to persuade Mr. Cassel to settle, were not admissible in the subsequent malpractice action, notwithstanding the fact that exclusion of such evidence might well compromise Mr. Cassel’s ability to prove his claim of legal malpractice.

The court’s view of the matter was distinctly set forth in the first paragraph of the opinion:

“We have repeatedly said that these confidentiality provisions are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where compelling public policies may be affected. [Citing, inter alia, Simmons, and Foxgate, both supra.]” 51 Cal. 4th at 117.

There were two important elements to the court’s decision, both grounded in explicit statutory language. First of all, Evidence Code sections 1119(a),(b) preclude evidence or discovery of anything said or written “for the purpose of, in the course of, or pursuant to, a mediation….” Thus, confidentiality is not limited to what is said or written in or for the mediation session. It applies equally, e.g., to discussions between counsel and client which occurred “pursuant to” a mediation, i.e., certain discussions Mr. Cassel sought to introduce into evidence in his subsequent malpractice action. Secondly, confidentiality is not limited to what is said or written by the parties themselves. Rather, the statutory language is very clear that confidentiality applies to all participants, not just parties, which of course included Mr. Cassel’s attorneys.

The court also stressed that any exception to the attorney-client privilege which might obtain in a legal malpractice action did not change or limit the application of mediation confidentiality:

Thus, mediation confidentiality is very broad. But, keep in mind that mediation confidentiality does not preclude judicial enforcement of a settlement agreement reached through mediation, if the agreement contains what I call “the magic words,” i.e., it is admissible or subject to disclosure, or, enforceable or binding, or words to that effect. Evidence Code Section 1123.

If you have any questions or if I may offer my services in mediating pending matters, feel free to contact me directly at (310) 442-0052 or peterjmarx@earthlink.net, or contact my Case Manager, Ms. Nicole Bethurum, at (310) 284-8224 or nicole@arc4adr.com.


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