Mediation Confidentiality – Courts are Serious About It - Even Lawyer Malpractice Can’t Crack the Code

The California Supreme Court is serious about protecting and enforcing mediation confidentiality.  To be sure, the Evidence Code provides explicit protection.  Sections 1115-1123 generally provide that anything said in the course of mediation is confidential and cannot be used as evidence in court.

Prior cases have held that even a settlement agreement entered into during mediation cannot be used as evidence in a later proceeding to enforce it unless the parties specifically provide in the agreement (or otherwise in writing) that the document can be so used. (That case is Fair v. Bakhtiari, 40 Cal. 4th 189 (2006).)  A similar rule applies to oral settlement agreements reached during mediation – those discussion cannot be used as evidence either (Simmons v. Ghaderi, 44 Cal.4th 570 (2008)).

The courts have also ruled that just because a party presents a piece of pre-existing evidence during mediation, that evidence is not thereafter tainted with confidentiality.  In essence, evidence that existed prior to the mediation remains evidence and can be used in post-mediation proceedings. Only items that were specifically prepared for the mediation become confidential.  (The ruling on this issue is Foxgate Homeowners Ass’n v. Bramalea California Inc., 26 Cal.4th 1 (2001).)

But what happens if a lawyer commits malpractice during the mediation?  Can the client sue and use statements the lawyer made to him/her during mediation as evidence of the malpractice?  The answer is no. The California Supreme Court, in the case of Cassel v. Superior Court, ruled that the commonly-repeated statement about Las Vegas applies in full to mediation:  what is said in mediation stays in mediation.

A full copy of the Cassel case, which summarizes the other cited holdings as well, is attached for your convenience.

Our firm has an extensive ADR practice and Bo Links of our office regularly serves as a mediator and arbitrator in helping parties to resolve complex cases. If you are interested in our ADR services, feel free to give us a call.

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