The new year is almost upon us, and with it comes a new obligation for California attorneys participating in mediations. Effective January 1, a California attorney representing a client in a non-class/non-representative action must provide the client with a printed disclosure explaining mediation confidentiality and obtain the client’s signed acknowledgment.
Why is this happening now? In 2011, in Cassel v. Super. Ct., 51 Cal. 4th 113, the California Supreme Court held that the Evidence Code’s mediation confidentiality protections applied to an action for attorney malpractice, thus precluding the client from introducing mediation communications in support of his malpractice claim. On the heels of this decision, the Legislature commissioned a study by the California Law Revision Committee to explore the relationship between mediation confidentiality and attorney malpractice.
In June 2017, after five years of study, the CLRC issued its 158 page report, recommending “creating a new exception to Section 1119, which would focus on holding attorneys accountable for mediation misconduct, while also allowing attorneys to effectively rebut meritless misconduct claims.” This recommendation met with fierce opposition from the bench, bar, and mediators. A compromise measure, SB 954, was crafted and quickly passed by the Legislature and signed by the Governor.
The legislation—which amends Section 1122 of the California Evidence Code and adds Section 1129—adopts a disclosure protocol in lieu of limiting the mediation privilege. Evidence Code Section 1129 provides that “Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.”
What is the takeaway for lawyers who might wind up mediating a non-class/non-representative case? First, make sure you provide your client with the required disclosure and obtain his/her signed acknowledgement. The legislature has made this task exceedingly simple by providing the full text of a disclosure that complies with the new obligation (so long as it is in 12-point font, on an unattached single page, and includes the names and signatures of both the attorney and client). See Evidence Code Section 1129(d).
Second, do not delay in making the disclosure, since it must be accomplished before the client agrees to mediation. Consider making the disclosure and obtaining the acknowledgement at the same time as (but not attached to!) the initial representation agreement.
Finally, making the disclosure and securing the acknowledgement protects both you and your client. In the event of a disciplinary complaint against you, you may introduce the document in the disciplinary proceeding to show that you complied with your legal obligation.
Happy New Year and happy mediating!