Unintended Consequences of Strict Mediation Confidentiality Statutes

The California Supreme Court has recently held that private communications between an attorney and client taking place in connection with a mediation remain confidential even when the disclosure is by the client to show alleged malpractice by the attorney.

Michael Cassel sued the lawyers who represented him during mediation for malpractice, breach of fiduciary duty, fraud and breach of contract, alleging that his lawyers improperly induced him to settle for less than he wanted and less than the case was worth. The lawyers moved to exclude all evidence of private attorney-client communications, even though, being the client’s privilege, such communications could be disclosed by the client.

Because the communication occurred during mediation, the California Supreme Court in Cassel v. Superior Court, No. S178914, (Cal. Jan. 13, 2011), interpreted the plain language of Section 1119 of the California Evidence Code and refused to order disclosure stating “[w]e have repeatedly said that these confidentiality provisions are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected… .” (Id. at p. 3)

This is a perverse and unjust result dictated by the overly broad and prescriptive language of the statute.

I agree with the concurring opinion:

The court holds today that private communications between an attorney and a client related to mediation remain confidential even in a lawsuit between the two. This holding will effectively shield an attorney’s actions during mediation, including advising the client, from a malpractice action even if those actions are incompetent or even deceptive. (See maj. opn., ante, at p. 28, fn. 11.)…. This is a high price to pay to preserve total confidentiality in the mediation process.

While the Court may have been right to apply the language of the statute as written, I believe this is an example of the Legislature paying attention to only one concern – the benefits of confidential mediation communications – and overlooking possible circumstances when confidentially should NOT be protected. There are better ways to balance the competing interests of protecting mediation confidentiality rather than simply providing that statements made during mediation can never be disclosed.

The Uniform Mediation Act does a better job of balancing the various interests involved. Section 6(a)(6) of the Act specifically exempts information “…sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation….”

Similarly, if mediation is really a profession (it is), then mediators must be liable for their own misconduct. The UMA recognizes this in Section 6(a)(5) which, as in subsection (6), excludes from protection information “sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator….”

California’s strict confidentiality approach should not be followed for at least two good reasons. First, as in Cassel, it can and has produced unjust and unfair results. Second, over time such unjust results will result in a backlash giving support to those who would abolish mediation confidentiality entirely.