MAPC Lawyers Publish “California Supreme Court finds that all parties to a mediation, including the attorneys, are entitled to benefit of mediation confidentiality.”

by Joshua R. Dale 

The California Supreme Court found that there is no “disputant” requirement for invoking the protections of California’s mediation confidentiality law, Evidence Code section 1119.  Thus, it found that a party to s mediation in an underlying dispute, who later sued his attorneys for malpractice regarding their handling of the underlying dispute, could not use evidence of what was said in the mediation against his attorneys.

The Court of Appeal below found that the mediation confidentiality laws were designed to protect the disputants in the mediation, i.e., the plaintiff and defendant, and not the parties’ attorneys.  Thus, the appellate court allowed statements between the client and his attorneys prior to and during the mediation in the underlying matter to be admitted as evidence against the attorneys in the malpractice action.

The Supreme Court reversed, finding that the plain language of the statute applied to all persons participating in the mediation.  While the Supreme Court recognized that its decision might result in an inequitable outcome for the client, whose basis for claiming malpractice was grounded almost entirely on allegedly bad advice he received from his attorneys during the planning stage of mediation and in the mediation itself, the Supreme Court nonetheless found that the plain language of the statute controlled.

Cassel v. Superior Court (Wasselman) (2d Dist., Jan. 13, 2011) Case No. S178914