Your Ethics Are Implicated by Mediation Confidentiality

Rachel Ehrlich, Ehrlich Mediation & Dispute Resolution Services

In 2014, this Legal Ethics Corner column provided readers with “Some Thoughts On Issues Raised, But Not Resolved, by Cassel v. Superior Court.” Those issues remain unresolved, but some are closer to resolution than before. You may recall that the essential holding of Cassel is that in a legal malpractice action, no mediation communications are admissible, including communications in preparation for mediation.

A brief history

Cassel was decided in 2011. The legislature considered and then withdrew legislation creating an exception to mediation confidentiality in 2012. Also in 2012, the California Law Revision Commission (CLRC) received a referral from the legislature to study the issue and make recommendations.

Current status

The CLRC has been studying the questions of whether and how to create exceptions to mediation confidentiality since the referral in 2012. The CLRC recently (in its August and October 2015 meetings) decided that it would like to see a draft recommendation of legislation modifying the existing Evidence Code to except from mediation confidentiality instances of attorney-advocate malpractice or misconduct. See, Evidence Code Sections 1115-1128.

What the current status means

Attorneys who recommend mediation to their clients are still faced with several unresolved issues that BASF Legal Ethics Committee member Kevin Sullivan identified in his 2014 Legal Ethics Corner column.

Accordingly, all attorneys involved in mediation, as advocates, need to consider whether, when, and how to discuss these issues with their clients.

As a reminder, some of the unresolved issues identified by Sullivan in 2014 are (paraphrasing):

  1. Do attorneys have an ethical obligation to advise clients that mediation will shield the attorneys from any claims by the client? What about Justice Chin’s concerns raised in Cassel? The fact that attorneys participating in mediation will be held accountable if their actions are so extreme as to engender a criminal prosecution falls far short of the protection members of the public are entitled to and expect.
  2. The Cassel decision gives no guidance on the possible ethical obligation to advise a client that the client will be unable to use any communications connected with mediation in the event that the client complains of the attorney’s handling of the matter (or takes issue with fees). See, CRPC Rule 3-400 – Limiting Liability to Client, and Rule 3-300 – Avoiding Interests Adverse to a Client.
  3. Do Evidence Code §1115 et seq., and Cassel bar the introduction of evidence regarding deviations from, or non-compliance with, the foundational requirements and rules governing mediation proceedings?

Cassel covers discussions leading up to and culminating in the settlement agreement. However the “in preparation” for mediation language does not provide any guidance as to what “preparation” is.
Mediations regularly involve further matters after the actual mediation ends (e.g., preparing formal settlement agreements, resolving lien disputes, attorney-client fee adjustments, etc.).

These may require reference to the mediation, yet the court provided no guidance as to how the participants should proceed.

About the author:

Rachel Ehrlich is a nationally recognized mediator specializing in complex civil disputes. She mediates litigated and non-litigated matters in the following areas: construction defect, insurance coverage, insurance bad faith, environmental, civil rights, real estate including landlord-tenant, and personal injury including catastrophic injuries.