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Critical Exception to Mediation Confidentiality Advances

By Paul Fisher1

The first exception to mediation confidentiality since Cal.Evid.Code § 1119 was enacted in 1997 is a big step closer to becoming reality not withstanding opposition by portions of California’s legal and judicial community. At the request of the Legislature, the objective of the California Law Revision Commission, CLRC, in adding Section 1120.5 is “to promote attorney accountability in the mediation context, while also enabling an attorney to defend against a baseless allegation of mediation misconduct.” Comment to Section 1120.5. On January 8, 2018 the CLRC released its Pre-Print Recommendation, which when approved by the Chair and Vice Chair will become the final recommendation for submission to the Legislature and Governor.

The following is a synopsis of the CLRC recommendations: The proposed new statute, Evidence Code section 1120.5, would create an exception to mediation confidentiality when there is alleged misconduct of a lawyer when representing a client in the context of mediation. The exception would apply in the following types of cases: (A) a disciplinary proceeding against the lawyer under the State Bar Act, or a rule or regulation promulgated pursuant to the State Bar Act; (B) a cause of action for damages against the lawyer based upon alleged malpractice; (C) a dispute between the lawyer and client concerning fees, costs, or both, including, but not limited to, a proceeding under Article 13 of the Business and Professions Code.

“The exception does not apply in resolving a claim relating to enforcement of a mediated settlement agreement (e.g., a claim for rescission of a mediated settlement agreement or a claim for enforcement of a mediated settlement agreement). That restriction promotes finality in settling disputes and protects the policy interests underlying mediation confidentiality.” Comment to Paragraph (1).

An additional condition of admissibility of evidence is that the evidence does not constitute or disclose a writing of the mediator relating to a mediation conducted by the mediator. If the above conditions are met only the portion of evidence necessary for the application of the exception may be admitted or disclosed.

In applying this section, a court may, but is not required to, use a sealing order, a protective order, a redaction requirement, an in camera hearing, or a similar judicial technique to prevent public disclosure of mediation evidence, consistent with other provisions of law.

No mediator shall be competent to provide evidence pursuant to this section, through oral or written testimony, production of documents, or otherwise, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with a mediation that the mediator conducted, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under Section 170.1 of the Code of Civil Procedure.

The Commission’s intent is to establish an across-the-board rule that a party may not invoke proposed Section 1120.5 in any proceeding unless that party gives reasonable advance notice to all other mediation participants whose identity and address are reasonably ascertainable, including the mediator. “This affords an opportunity for a mediation participant who would not otherwise be involved in the misconduct dispute to take steps to prevent improper disclosure of mediation communications or writings of particular consequence to that participant.” Comment to Paragraph (1).

The Commission also approved new Section (h) “Any agreement purporting to override this section is null and void.” The accompanying Comment will state: “To help ensure that attorneys are held accountable for mediation misconduct, subdivision (h) prevents mediation participants from contractually avoiding the impact of this section.” The proposed operative date is January 1, 2019, such that the act applies with respect to a mediation or a mediation consultation that commenced on or after January 1, 2019.

  1. Copyright 2018 by Paul Fisher