Another Attempt to Create an Exception to Mediation Confidentiality in California
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Several weeks ago, I posted a blog about the enactment of Senate Bill 954 as Evidence Code section 1129. This new law effective January 1, 2019 requires counsel to obtain a written acknowledgement from their clients as soon as is reasonably possible after agreeing to mediation or to a mediation consultation that they understand the restrictions of mediation confidentiality.
What has slipped by unnoticed is a resolution passed by the California Conference of Bar Associations (CCBA) during the California Lawyers Association’s (formerly a part of the State Bar of California) convention in mid-September 2018. Resolution 08-09-2018 would amend
…Evidence Code section 1120 to allow attorney-client communications made during mediation to be admissible in State Bar disciplinary proceedings or civil actions for malpractice. This resolution should be approved in principle with recommended amendments because it protects clients from unscrupulous attorneys who use the confidentiality of mediation to cloak their own wrongdoing, to the detriment of their clients, and allows clients to seek redress for attorney negligence in the context of mediations.
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