On September 11, 2018, Governor Jerry Brown signed SB 954 which (when it takes effect on January 1, 2019) will require attorneys to inform their clients of the confidentiality restrictions related to mediation and to obtain their clients’ written acknowledgment that this disclosure has been made to them and that they understand it.
While this requirement does not apply to class or representative actions, it does apply, “…as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation.”(Section 1129(a).) At that time, the attorney shall “… 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.” (Id.)
The new statute contains a sample disclosure form that if used, will provide a “safe harbor” such that the disclosure requirements will be deemed met. ( Section 1129(d).)
Significantly, the failure of an attorney to comply with this new law will NOT provide a basis to set aside an agreement prepared for, in the course of, or pursuant to a mediation. (Section 1129(e).) But, so long as the disclosure form “… does not disclose anything said or done or any admission made in the course of the mediation”, it will not be deemed confidential and thus “…may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.” (Section 1122(a)(3).)
This new bill grew out of the decision in Cassel v Superior Court, (2011) 51 Cal. 4th, 113, 119 Cal Rptr. 3d 437 in which the Supreme Court declared that the policy underlying mediation confidentiality overrides the ability of a party to a mediation to sue his attorney for alleged professional negligence occurring at the mediation. In his reluctant concurring opinion, Justice Chin noted that while he agreed with the majority that the Court must give full effect to the statutory language, perhaps the Legislature did not fully consider the law’s effect of fully shielding attorneys from accountability in this way and that perhaps there is a better way to counter balance the competing interests of confidentiality and accountability. (Id. at 51 Cal 4th at 139.)
This concurring opinion led to the introduction of AB 2025 (in February 2012) to create an exception to mediation confidentiality for legal malpractice. After initially being introduced, the bill faced extreme opposition to the point that it was amended (in May 2012) to refer the matter to the California Law Revision Commission to study the matter and make a recommendation. Five years and over 3,000 pages of memoranda later, it issued a Tentative Recommendation in June 2017 for public comment. It was met with over whelming opposition and thus its proposed new bill was never introduced into the Legislature in the fall of 2017.
However, most parties involved in this process agreed that parties to mediation should be made aware ahead of time of the confidentiality provisions and their consequences; most predominantly, that whatever occurs during a mediation or in a strategy session leading up to the mediation will not be admissible in a subsequent malpractice action. (That is, some form of “prior disclosure” or “informed consent”.)
Hence the introduction in January 2018 and subsequent enactment of SB 954. It provides that transparency so that parties attending mediation go in with eyes wide open, aware that if the mediation does not go the way they want, they cannot later take their disappointment out on their attorney by suing for legal malpractice.
Hopefully, this proactive measure will help increase a party’s satisfaction with the mediation process and its outcome.
…. Just something to think about.
© 2018, Ron Kelly. Permission is granted to reprint and post this article as written.