Cassel then sued his attorneys for legal malpractice, alleging that the attorneys “forced” him to accept $1.25 million, rather than the higher amount he sought. In this regard, he contended, among other things, that, during the mediation, his attorneys threatened to withdraw from representing him on the eve of trial if he did not agree to settle the case under the auspices of a reduction in their fees. 

Before trial, the attorneys moved in limine to exclude evidence of conduct and conversations between them and Cassel that occurred while preparing for and at mediation. The trial court granted the motion. The California Court of Appeal, Second Appellate District, issued a writ reversing the trial court’s in limine order, ruling that evidence of conversations during the mediation were admissible in the malpractice trial. Effectively, this opinion created a judicial exception to Evidence Code section 1120.

The California Supreme Court granted review, and on January 13, 2011, issued Cassel v. Superior Court, 51 Cal.4th 113 [119 Cal.Rptr.3d 437] (2011). The Supreme Court reversed the Court of Appeal decision, ruling that the appellate ruling created an impermissible judicial exception to the clear language of the mediation statutes. According to the Supreme Court, “the obvious purpose of the expanded language is to ensure that the statutory protection extends beyond discussions carried out directly between the opposing parties to the disputes, or with the mediator, during mediation proceedings themselves.” (Cassel, supra, 119 Cal.Rptr.3d at 449.) The Supreme Court also rejected arguments that confidentiality was a privilege that could be waived. Thus, the Supreme Court again, consistent with previous decisions, ruled the mediation confidentiality inviolate. (See, e.g., Simmons v. Ghaderi, 44 Cal.4th 570, 580 (2008); Rojas v. Superior Court, 33 Cal.4th 407,422 (2004); Foxgate Homeowners’ Assn. v. Bramalea California, Inc., 26 Cal.4th 1, 13-14 (2001); Wimsatt v. Superior Court, 152 Cal.App.4th 137, 163 (2007)).

In the summer of 2011,  the Beverly Hills Bar Association decided to sponsor a resolution at the 2011 Conference of California Bar Associations to overturn the effect of the Cassel decision. The resolution, which was adopted at the Conference in September 2011 proposes the following amendment to Evidence Code section 1120:

 RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Evidence Code section 1120 to read as follows:

 § 1120

(a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in mediation or a mediation consultation.

(b) This chapter does not limit any of the following:

(1) The admissibility of an agreement to mediate a dispute.

(2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.

(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute.

(4) The admissibility of communications directly between the client and his or her  attorney, only, where professional negligence or misconduct form the basis of the client’s allegations against the client’s attorney.

(Proposed new language underlined, language to be deleted stricken)

The Conference of California Bar Associations is seeking a member of the California Legislature to carry this bill.

The California Dispute Resolution Council  Board of Directors, at its January meeting, discussed this proposed exception to mediation confidentiality at length.

In my personal opinion (not the official view of CDRC), the proposed change to the mediation confidentiality statute is deeply troubling for several reasons. First, what is the limit of the exception? Will clients or lawyers be entitled in fairness to discover and offer evidence of other witnesses in order to buttress their side of a “he said-she said” dispute, thereby effectively eliminating mediation confidentiality if legal malpractice is alleged? Second, despite Evidence Code section 703.5 making mediators incompetent to testify, should mediators bear the cost of retaining counsel, fighting subpoenas, and defending against clearly impermissible attempts to compel their testimony? Finally, where is the empirical data that shows a compelling need to disclose conversations when measured against the thousands of mediations that occur yearly in California? In other words, is this not a solution in search of a problem that is not significant enough to warrant a major departure from long standing California public policy?

Before taking a position on this proposal, the CDRC seeks your opinion. I invite you to take a 5 minute survey here to tell us what you think: CDRC Cassel Survey.

I also invite you to contact me or any member of the board of directors with your thoughts. I can be reached at pres@cdrc.net.

Doug Noll

President, California Dispute Resolution Council