TIPS OF THE TRADE: ENSURING THAT YOUR CLIENT TRULY UNDERSTANDS THE EXTENT OF MEDIATION CONFIDENTIALITY
By Vivian L. Thoreen, Esq.* and Yunnie Youn Son, Esq.*
Mediation helps clients resolve disputes. A settlement reached through mediation will generally be more cost-effective and take up less time than a trial, and it can provide greater flexibility to resolve the parties’ underlying dispute than a judgment after trial.
All communications, statements, and writings connected to mediation are confidential under California law.1 This statutory grant of confidentiality assures mediation participants that they can speak candidly without fear of their discussions being disclosed to third parties or used against them later. However, clients often don’t understand the broad scope of mediation confidentiality when they agree to participate. Enforcement of mediation confidentiality can and, at times, does lead to dramatic and potentially unfair consequences, as was the case in Cassel v. Super. Ct. (Wasserman, Comden, Casselman & Pearson, LLP) (2011) 51 Cal.4th 113.
In Cassel, a client agreed in mediation to settle business litigation. He then sued his attorneys alleging they had obtained his consent to the settlement through bad advice, deception, and coercion. He alleged that his attorneys, who had a conflict of interest, led him to settle the matter for less than the case was worth and less than he had agreed to accept. The attorneys moved to exclude all evidence of private attorney-client discussions during and preceding the mediation concerning settlement strategies and the attorneys’ efforts to persuade the client to reach a settlement. The trial court granted the motion but was reversed by the appellate court. The California Supreme Court granted review to address the competing policy concerns. The Supreme Court held that although there are sound policy reasons for not allowing mediation confidentiality to shield an attorney from damaging information in a malpractice action brought by the attorney’s client, the plain language of the relevant statutes indicated the Legislature’s intent to exclude from any civil action all such communications, unless expressly waived.2 As a result, all mediation-related discussions between an attorney and client remain confidential and are not discoverable or admissible in a subsequent malpractice action or disciplinary proceeding against the attorney.3