Woodland hills personal injury lawyer Barry P. Goldberg encourages mediation in almost every case he handles. In California, what is said and communicated in the mediation context is privileged and cannot be used in subsequent matters. Many attempts have been made to circumvent the privilege without much success. Recently, another attempt to use evidence or acts by an attorney at mediation were precluded in a subsequent legal malpractice action. (Amis v. Greenberg Traurig LLP (March 18, 2015) ___ Cal.App.4th ___.) The privilege is applied even if it may hinder the client’s ability to prove a legal malpractice claim against his or her lawyers.
In that case, it appears that an attorney gave significantly bad advice which led a client into signing a settlement agreement. The agreement, among other things, made the party personally liable for a debt that he was otherwise not personally responsible. In the legal malpractice lawsuit, the party sought to introduce the communications and omissions of the lawyer which occurred at the mediation, leading to the signing of the agreement.
The Court reaffirmed that mediation confidentiality is codified in Evidence Code section 1115, et seq.“With specified statutory exceptions, neither ‘evidence of anything said,’ nor any ‘writing,’ is discoverable or admissible ‘in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which . . . testimony can be compelled to be given,’ if the statement was made, or the writing was prepared, ‘for the purpose of, in the course of, or pursuant to, a mediation . . . .’ ” (Cassel v. Superior Court (2011) 51 Cal.4th 113, 117 (Cassel), quoting § 1119, subds. (a), (b).) Even after mediation ends, communications and writings protected by the statutes are to remain confidential. (§ 1126.)
The Court noted that the California Supreme Court has broadly applied the mediation confidentiality statutes and all but categorically prohibited judicially crafted exceptions, even in situations where justice seems to call for a different result. (Cassel, supra, 51 Cal.4th at p. 118; see Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 152 (Wimsatt).) “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” (Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 15 (Foxgate); accord, Rojas v. Superior Court (2004) 33 Cal.4th 407, 416; Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194.) “Judicial construction, and judicially crafted exceptions, are permitted only where due process is implicated, or where literal construction would produce absurd results, thus clearly violating the Legislature’s presumed intent. Otherwise, the mediation confidentiality statutes must be applied in strict accordance with their plain terms. Where competing policy concerns are present, it is for the Legislature to resolve them.” (Cassel, at p. 124; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 582-583; Foxgate, at pp. 14-17.)
Further, the Supreme Court’s holding in Cassel dictated the same result be reached in this case. The plaintiff in Cassel sued his attorneys for malpractice, alleging the attorneys “induced him to settle” a business dispute for less than the case was worth by coercing him to enter a settlement agreement during mediation. (Cassel, supra, 51 Cal.4th at p. 118.) The Supreme Court upheld the trial court’s order precluding evidence related to the mediation, including private discussions the plaintiff had with his attorneys about the settlement. In doing so, the high court rejected the Court of Appeal majority’s view that “[t]he mediation confidentiality statutes do not extend to communications between a mediation participant and his or her own attorneys outside the presence of other participants in the mediation.” (Id. at pp. 121-122, 129-134.)
It is very important to consider that the Cassel court recognized its holding may hinder the client’s ability to prove a legal malpractice claim against his or her lawyers. (Cassel, supra, 51 Cal.4th at pp. 122, 133-134.) Nevertheless, the court emphasized the judiciary had no authority to craft its own exceptions to the mediation confidentiality statutes, “even where the equities 9 appeared to favor them.” (Id. at p. 133.) Quoting from Wimsatt, the Supreme Court acknowledged “ ‘[t]he stringent result we reach here means that when clients, such as [the malpractice plaintiff in [Wimsatt]], participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel.’ ” (Cassel, at p. 133, quoting Wimsatt, supra, 152 Cal.App.4th at p. 163, Emphasis added.; see also Cassel, at p. 138 (conc. opn. of Chen, J.) [“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.”], Emphasis added.) Be that as it may, the court stated, “‘if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts. [Citation.]’ ” (Cassel, at p. 133, quoting Wimsatt, at p. 163.)
It is unclear whether the continued broad application of the mediation privilege will actually make it more difficult to settle cases at the mediation. Instead, many cautious litigants may want to take the actual settlement outside of the mediation to check and double check the terms and implications of a settlement. How many parties will participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel?