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By: Greg Fayard
Come January 1, 2019, California lawyers who participate in mediations will need to provide written disclosures to their clients explaining mediation confidentiality. Further, California lawyers must get written acknowledgment from clients that they understand mediation confidentiality before participating in mediation. This requirement does not apply to class actions, however. The new law is a new statute in the Evidence Code pertaining to mediations–Section 1129.
The following disclosure satisfies the new law, so long as it is in 12-point font, in the preferred language of the client, and on a stand-alone, single page. Both the attorney and client have to sign and date the disclosure.
Mediation Disclosure Notification & Acknowledgment
To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:
This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.
I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
[Name of Client] [Date signed]
[Name of Attorney] [Date signed]”
This disclosure must be provided to clients and signed as soon as reasonably possible before the client agrees to mediate. However, not obtaining a proper signed acknowledgment from a client is not a basis to set aside an agreement prepared for, in the course of, or pursuant to mediation. (Evid. Code, § 1129, subd. (e)). Attorneys can be disciplined for not complying with the new law, however. (Evid. Code, § 1122,, subd. (a)(3)).
What prompted this new law? First, it addresses the lack of client awareness of confidentiality at mediation. Second, attorneys were able to avoid mediation professional liability claims through the cloak of confidentiality. To address attorneys escaping mediation liability claims, a communication, document or writing related to the attorney’s compliance with the new law is admissible in an attorney disciplinary proceeding (unless the document discloses something said or done during mediation).
In sum: If a California lawyer plans to mediate, he or she should prepare the above disclosure and calendar the client’s prompt signature before the mediation.
If you have any questions or would like more information, please contact Greg Fayard at [email protected].