Required Disclosures to Clients before Mediation
by Melissa Blair Aliotti
Evidence Code section 1119 serves as the foundation for California’s virtually all-encompassing mediation confidentiality mandate. Since the California Supreme Court decision in Cassel v. Superior Court (2011) 51 Cal.4th 113, the legislature, the California Law Revision Commission (CLRC), as well as mediators, legal scholars, and practitioners from myriad perspectives have contemplated legislation aimed at carving out an exception to mediation confidentiality for legal malpractice. Newly-enacted Evidence Code section 1129 is the product of those several years of study, effort, and expense. This new section requires that every lawyer obtain the informed written consent of his or her client before participating in mediation. After five years of study, the CLRC’s tentative recommendation in July 2017 was essentially to create an exception to mediation confidentiality for legal malpractice and related offenses, suggesting a process involving notice to and consent from all mediation participants before disclosing the otherwise-confidential information. The 178-page report makes clear the goal of protecting consumers from bad-acting lawyers, while nevertheless seeking to consider all possible disadvantages to the exception and potential barriers to its implementation. The CLRC invited public comment on the tentative recommendation, which was again met with overwhelming opposition (the ratio was about 10:1). Efforts to introduce legislation creating an exception to mediation confidentiality for legal malpractice were again stymied.
In early 2018, Senate Bill 954 was introduced, proposing an addition to the Evidence Code – section 1129 – requiring an attorney representing a client participating in a mediation to obtain the client’s written consent on an acknowledgment form. The general consensus among the various stakeholders seemed to be relief. After two amendments in the Assembly and two amendments in the Senate, where it was alternately expanded and contracted, and pushed back and forth between the Business and Professions Code and the Evidence Code, the bill was enrolled in its final form. On September 11, 2018, the legislation was signed by Gov. Brown, and it became effective on January 1, 2019.
Evidence Code section 1129 requires that an attorney representing a client in mediation obtain advanced informed written consent regarding mediation confidentiality. It even includes a presumptively sufficient format, which can be readily copied and pasted from the internet or a favorite online library service.1 While failure to comply with this law will not undo a settlement reached in mediation or serve as a basis for a legal malpractice action, failure to comply is grounds for discipline.
Also amended in 2018, Evidence Code section 1122 now reads (with emphasis added) in pertinent part:
“(a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if … (3) The communication, document, or writing is related to an attorney’s compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.”
Most settlements occur in, or following, mediation or a related process. Not all clients are happy with the results of mediation the following day (or month or year). Now lawyers can be disciplined if their clients did not know about mediation confidentiality. It follows that there is probably no new law more applicable to an attorney’s practice than Evidence Code section 1129. It really is very straightforward. Read it, follow it, and stay out of trouble.
1 Please read the code section enacted January 1, 2019 for a handy format for your new consent forms.
Evidence Code section 1129
“(a) 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.
(b) An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in subdivision (a).
(c) The printed disclosure required by subdivision (a) shall:
(1) Be printed in the preferred language of the client in at least 12-point font.
(2) Be printed on a single page that is not attached to any other document provided to the client.
(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.
(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a): [¶] [exemplar language omitted].
(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.”