Fisher Mediation
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Exception to Mediation Confidentiality: Claims by Client Against Their Attorney

The Court of Appeal opinion discussed in this article concerning Cassel V. Superior Court; Wasserman, Comden et Al, Real Parties in Interest, has been overruled by the decision discussed in the article titled “California Supreme Court: No “Attorney Malpractice” Exception to Mediation Confidentiality” (January, 2011)

by Paul Fisher, Edited by Judith Stalk

Mediation counsel beware! Applying excessive pressure on your client to settle a mediated case at mediation might result in you being your client’s next target. In addition, the communications between you and your client immediately preceding and during mediation will not be excluded as attorney-client privilege or by mediation confidentiality in a malpractice claim and trial brought against you by your client. This is a case of first impression.

What follows is a paraphrasing of the court opinion. Cassel V. Superior Court; Wasserman, Comden et Al, Real Parties in Interest, (– Cal.Rptr.3rd –, 2009 WL 3766430 (Cal.App. 2 Dist.), 09 Cal.Daily Op. Serv. 13,757) The question presented is whether, as a matter of law, mediation confidentiality requires exclusion of conversations and conduct solely between a client and his attorneys during meetings which were held outside the presence of any opposing party or mediator on the days preceding and during mediation in which they were the sole participants. The Court concluded that neither the attorney-client privilege nor mediation confidentiality preclude the admission of these communications.

Cassel was party to a law suit and was represented by Wasserman, Comden, Casselman & Pearson, LLP (“Wasserman”). Cassel and Wasserman met with each other on the two days before mediation and at the mediation during which Cassel and the opposing party entered into a $1.25 million settlement agreement. Cassel subsequently brought a legal malpractice action alleging that Wasserman forced him to sign the $1.25 million settlement agreement rather than the higher amount he had told Wasserman was acceptable.

Wasserman brought a motion in limine seeking to exclude evidence proffered by Cassel regarding certain conduct and conversations between them during meetings in which they were the sole participants and which were held outside the presence of the opposing party and the mediator. Wasserman claimed that the communications were protected from disclosure by the mediation confidentiality statutes in Evidence Code sections 1115 et seq. (All other references are to Evidence Code.) Cassel argued that they were confidential communications between client and his attorneys which were subject to the law of the lawyer-client privilege in section 950 et seq. and that mediation confidentiality did not apply.

“By definition, mediation is a process facilitated by a mediator between disputing parties, not between a client and his attorney. Section 1115 provides the following definition: ‘For purposes of this chapter: (a) ‘Mediation’ means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.’ (Italics added.) For mediation purposes, a client and his attorney operate as a single participant.” Legislative intent and policy behind mediation confidentiality… are not to facilitate communication between a party and his own attorney.

“In the instant case, the communications were not made by the client or his attorneys to another party (or its attorney) that was a participant in the mediation or to the mediator. As we previously concluded, they were not communications between “disputants” and the “mediator,” as required to come within the definition of a “mediation” or “mediation consultation” and, therefore, did not qualify for protection under mediation confidentiality. (§§ 1115, 1119.)”

“Perhaps most importantly, Wasserman and Cassel are not within the class of persons which mediation confidentiality was intended to protect from each other – the “disputants,” i.e., the litigants – in order to encourage candor in the mediation process. (Rojas v. Superior Court, supra, 33 Cal.4th at pp. 415-416; accord, Foxgate Homeowners’ Assn. v.Bramalea California, Inc., supra, 26 Cal.4th at p. 14.) There is no indication of any legislative intent that the mediation confidentiality statutes were to protect a lawyer from his client.”

Not addressed in this opinion is whether the attorney-client communications are admissible or excludable in trial depending on their content; ie. communications involving evaluation of the case or discussions concerning the other parties to the mediation and the mediator’s comments. (With thanks to colleagues at the International Academy of Mediators for their insight.)