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Counsel should be aware of recent legislation which imposes new responsibilities when mediation is contemplated. The impetus for this development actually arose years ago, in the decision of the California Supreme Court in Cassel v. Superior Court, 51 Cal. 4^th 113, 119 CR 3d 437 (2011). Cassel was particularly noteworthy in that the Court, upholding and applying strict mediation confidentiality requirements (see Evidence Code 1115, et seq.), precluded admission of any evidence of discussions which occurred for the purpose of or pursuant to a mediation – including discussions between client and counsel – in a subsequent action by the client against counsel for malpractice.

Cassel generated considerable discussion in the mediation community and in the legal community generally. Various proposals were floated which, e.g., would have carved out some sort of exception to mediation confidentiality in any subsequent action for legal malpractice. Fortunately, in the view of many, including this writer, those proposals came to nothing. What ultimately did occur was enactment of new legislation discussed below, mandating that counsel advise the client of mediation confidentiality requirements which, with very limited exceptions, effectively preclude disclosure of what was said or written for the purpose of or pursuant to a mediation, and also, that counsel advise the client specifically that such communications may not be used in any subsequent action against counsel for malpractice.

This new legislation is set forth in Evidence Code Section 1129, which requires (Section 1129(a)) that as soon as reasonably possible before the client agrees to mediate, except in class or representative actions, counsel provide the client with a printed disclosure containing the mediation confidentiality restrictions set forth in Evidence Code Section 1119, and, obtain a printed acknowledgement signed by the client, stating that he or she has read and understands those confidentiality restrictions.