On September 11, 2018, Governor Jerry Brown signed a new mediation bill into law that is intended to inform clients about confidentiality in the mediation process. The new law, which went into effect on January 1, 2019, requires lawyers to provide specific disclosures in writing and have the client sign an acknowledgment before the mediation process begins.
In 2012, the California Law Revision Commission (CLRC) recommended allowing otherwise confidential communications made during mediation to be used in disciplinary proceedings for lawyer malpractice. The CLRC's recommended allowing these communications to be used if the evidence is relevant to the question of whether a lawyer breached his or her professional duty to the client.
This recommendation was strongly opposed by mediators, lawyers, and judges. As an alternative, State Senator Bob Wieckowski introduced Senate Bill 954. According to the senator, the law “provides more transparency and a better understanding of the potential ramifications of the mediation process.”
According to the senator, “confidentiality in mediation allows for more candid discussions by participants, but consumers need to know it also means if problems arise those discussions cannot be used against their attorney in a malpractice claim. This bill is an improvement to the current system and will allow consumers to make better-informed decisions regarding their legal matters.”
The law has very specific requirements, including requiring the disclosure to be made:
- On a single, separate page,
- In minimum 12-point font,
- In the client's preferred language, and
- Including the name of the attorney and the client.
The disclosure is to be made before the client agrees to participate in mediation, or after being retained if the lawyer is retained after the client agrees to mediation. The disclosure must be signed and dated by both the client and the attorney. Some of the specific disclosures of the bill include the following:
- Statements made and writings prepared in connection with mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
- A mediator's report, opinion, recommendation, or finding about what occurred during mediation may not be submitted to or considered by a court or another adjudicative body.
- All communications between you and your attorney made in preparation for mediation, or during 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.
The law does not provide any remedies for failing to obtain a signed disclosure. Additionally, the law states that the “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.”
If you have any questions about the ERISA mediation and mediation confidentiality, the law firm of Butterfield Schechter LLP is here to help. We are San Diego County's largest law firm focusing its law practice on employee benefits law and ESOPs. Contact our office today with any questions on how we can help you and your business succeed.