Mediation Privilege Does Not Shield Attorney-Client Communications

When parties participate in mediation, all statements made in the course of the proceedings are privileged and cannot become evidence in a later case. This is the essence of Evidence Code section 1119 which sets forth the “mediation privilege.” The privilege covers oral statements and documents that are prepared for and utilized during the mediation, but does not cover normal evidence that might be discussed at the mediation. What happens if an attorney and a client have a dispute after the mediation about agreements that were reached between them during the mediation? Suppose, for example, that an attorney makes certain promises to his or her client about how the settlement proceeds will be divided and then reneges on those promises? In subsequent litigation, can the client introduce evidence of the statements and promises that were allegedly made between lawyer and client during the mediation? The answer is yes. In fact, this exact issue came before the court of appeal in Porter v. Wyner and the court ruled that the attorney-client conversations were not protected by the mediation privilege. The court relied on another part of the Evidence Code, section 958, which governs the attorney-client privilege. Pursuant to that provision, there is no privilege that covers “a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” A copy of the court’s opinion is attached for your convenience.

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