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California Supreme Court: No “Attorney Malpractice” Exception to Mediation Confidentiality

by Paul Fisher1

In a legal malpractice suit, communications between the attorneys and client during mediation of the underlying case are not admissible in the malpractice action. Those communications may not be used in subsequent proceedings and are protected by mediation confidentiality under Evidence Code § 1119 (all statutory references are to the Evidence Code), unless mediation confidentiality is waived by all participants. There is no “attorney malpractice” exception to mediation confidentiality. What follows is a summary of the Court’s opinion in Michael Cassel v. The Superior Court of Los Angeles County; Wasserman, Comden, Casselman & Pearson, LLP, Real Parties in Interest, 2011 Cal. LEXIS 2 (filed 1-13-11).

Petitioner Michael Cassel agreed during mediation to a settlement. He then sued his attorneys for malpractice, alleging that by bad advice, deception and coercion, the attorneys induced him to settle for a lower amount than he had told them he would accept, and for less than the case was worth. Prior to trial (Los Angeles Superior Court Judge William A. MacLaughlin), real parties in interest, the defendant attorneys moved under mediation confidentiality to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and defendants’ efforts to persuade petitioner to reach a settlement in the mediation. The trial court granted the defendants’ motion.

In the Supreme Court appeal, the real parties urged that under the plain language of mediation confidentiality statutes, their mediation-related discussions with petitioner were inadmissible in his malpractice action against them, even if those discussions occurred in private, away from any other mediation participant. Petitioner countered that the mediation confidentiality statutes do not protect such private attorney-client communications – even if they occurred in connection with a mediation – when the client claims that the attorneys committed legal malpractice.

“The statutory purpose is to encourage the use of mediation by promoting ‘a candid and informal exchange regarding events in the past… This frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.’2 (Simmons, supra, at p. 578.)3 The obvious purpose of the expanded language is to ensure that the statutory protection extends beyond discussions carried out directly between the opposing parties to the dispute, or with the mediator, during the mediation proceedings themselves. All oral or written communications are covered, if they are made ‘for the purpose of’ or ‘pursuant to’ a mediation. (§ 1119, subds. (a), (b).) It follows that… all discussions conducted in preparation for a mediation, as well as all mediation-related communications that take place during the mediation itself, are protected from disclosure. Such communications include those between a mediation disputant and his or her own counsel, even if these do not occur in the presence of the mediator or other disputants.” [emphasis added]4

There is no “attorney malpractice” exception to mediation confidentiality. “Our Supreme Court has clearly and [unequivocally] stated that we may not craft exceptions to mediation confidentiality. [Citation.]” As the court in Wimsatt acknowledged, “[t]he stringent result we reach here means that when clients, such as [the malpractice plaintiff in that case], participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel.” (Wimsatt) As Wimsatt correctly determined, that broad rule does not become inapplicable in cases where a client seeks to disclose the confidential communication as evidence in a legal malpractice action against his or her attorneys. Attorney-client communications, like any other communications, were confidential, and therefore were neither discoverable nor admissible – even for purposes of proving a claim of legal malpractice – insofar as they were “for the purpose of, in the course of, or pursuant to, a mediation…” (§ 1119, subd. (a).)

The Supreme Court concluded that the Court of Appeal’s contrary conclusion was a judicially crafted exception to the unambiguous language of the mediation confidentiality statutes in order to accommodate competing policy concerns – here, protection of a client’s right to sue his or her attorney. “We and the Courts of Appeal have consistently disallowed such exceptions, even where the equities appeared to favor them.”

Justice Chin concurred, “but reluctantly… This is a high price to pay to preserve total confidentiality in the mediation process.”



  • 1. Copyright 2011 by Paul Fisher.
  • 2. Simmons v. Ghaderi (2008) 44 Cal.4th 570, 580 (Simmons); Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194 (Fair); Rojas v. Superior Court (2004) 33 Cal.4th 407, 415-416 (Rojas); Foxgate Homeowners Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 13-14, 17 (Foxgate). Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 163 (Wimsatt).
  • 3. Section 1119 governs the general admissibility of oral and written communications generated during the mediation process. Subdivision (a) provides in pertinent part that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation… is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any… civil action… .” (Italics added in the Court opinion) Subdivision (b) similarly bars discovery or admission in evidence of any “writing… prepared for the purpose of, in the course of, or pursuant to, a mediation… .” Subdivision (c) of §1119 further provides that “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation… shall remain confidential.” (Italics added in Court opinion.) Exceptions are made for oral or written settlement agreements reached in mediation if the statutory requirements for disclosure are met. (§§ 1118, 1123, 1124; see Simmons.)
  • 4. Section 1119, subdivisions (a) and (b), do not restrict confidentiality to communications between mediation “participants.” They provide more broadly that “[n]o evidence of anything said” (§ 1119, subd. (a), italics added), and “[n]o writing” (id., subd. (b)), is discoverable or admissible in a legal proceeding if the utterance or writing was “for the purpose of, in the course of, or pursuant to, a mediation…” (Id., subds. (a), (b)). The protection afforded by these statutes is not limited by the identity of the communicator, by his or her status as a “party,” “disputant,” or “participant” in the mediation itself, by the communication’s nature, or by its specific potential for damage to a disputing party.