Should We Choose “Confidentiality” Over “Ensuring Good Behavior” in Mediation? A Legal Malpractice Debate in California

Allow Privacy or Prevent Bad Behavior = Which Should We Do?

By Donald L. Swanson

In the early 1980’s, mediation began gaining acceptance in California as a means of resolving disputes.  Since then, California law has placed a high value on mediation confidentiality and privacy.

The Supreme Court of California, in Simmons v. Ghaderi, 44 Cal. 4th 570, 588, 187 P.3d 934, 80 Cal. Rptr. 3d 83 (2008), explains how confidentiality has a higher value in mediation than the need to prevent bad behavior:

“with the enactment of the mediation confidentiality statutes, the Legislature contemplated that some behavior during mediation would go unpunished.”

“The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process. The mediation statutes provide clear and comprehensive rules reflecting that policy choice.”

So says the California Law Revision Commission in a publication dated July 23, 2013, and titled: “Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct.”

This publication is the first response of the Commission to a 2012 directive by the California State Legislature to:

“analyze the relationship” between “mediation confidentiality and attorney malpractice and other misconduct.”

The question the Commission is studying, under such directive, is this:

Should California continue the policy choice of “confidentiality” over “ensuring good behavior” in mediation?

The Legislature’s directive is part of the fallout from this California case: Cassel v. Superior Court, 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437 (2011).  The Cassel case “set in motion the events leading to this study.”

The Commission’s publication explains the Cassel case as follows:

It is a legal malpractice case in which “a man agreed in mediation to settle a lawsuit.” He later sues his attorneys for malpractice, claiming his attorneys “by bad advice, deception, and coercion” induced him to agree to a bad settlement.

The defendant attorneys move to exclude “all evidence of private attorney-client discussions” during mediation. The trial court grants the motion and an appeal ensues.

The appellate court reverses, reasoning that mediation confidentiality statutes are “not intended to prevent” proof of malpractice “against the client’s own lawyers.” An appeal from the reversal ensues to the Supreme Court of California.

The Supreme Court of California reverses and declares that mediation confidentiality statutes, (i) “must be strictly construed,” and (ii) are not subject to “a judicially crafted exception” for legal malpractice. It also determines:

–that a waiver by the parties of mediation confidentiality requires the consent of both parties: “the client’s consent alone” is not sufficient.

–that, as to due process concerns, “the mere loss of evidence pertinent to the prosecution of a lawsuit for civil damages does not implicate” due process interests.

–that “the Legislature is free to reconsider” the court’s ruling.

A “Reluctant” Concurrence

One member of the Supreme Court of California, Justice Chin, “reluctantly” concurs in the result. But he warns that the result could shield an attorney’s incompetent or deceptive actions from accountability, unless the actions “are so extreme as to engender a criminal prosecution against the attorney.” Justice Chin adds that, “This is a high price to pay to preserve total confidentiality in the mediation process.

Justice Chin suggests that “better ways” might include a statutory revision to allow use of information from mediation “in a malpractice action between an attorney and a client” but not “for any other purpose.”

“Reaction to the Cassel decision was decidedly mixed.” Some “praised the decision,” while others “sharply criticized it.” The Beverly Hills Bar Association, for example, urged legislation creating a malpractice exception, as suggested by Justice Chin.

Nearly three years have passed since the Commission’s initial publication dated July 23, 2013. The Commission has not yet reached a formal decision on the choice of “confidentiality” over “ensuring good behavior.”

However, it appears that the Commission is leaning toward a no-change position. For example, Minutes from the Commission’s April 24, 2016, meeting say that the Commission:

“instructed the staff to investigate and report” on whether “any constitutionally permissible method of in camera screening or quasi-screening” exists for a judicial officer to “use as a filter at the inception of a legal malpractice case” based on mediation misconduct.

This “constitutionally permissible” reference is to the right of privacy contained in California’s Constitution. Such right of privacy appears in several sections of the Constitution, including this one:

“Section 1: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and . . . pursuing and obtaining safety, happiness, and privacy.”

It will be interesting to see the Commission’s final conclusion and recommendation on this. In particular, it will be interesting to understand the role of the Constitutional right of privacy in the Commission’s final recommendation.

Editorial Note:

Statutory provisions in other jurisdictions allow for a legal malpractice exception to mediation confidentiality. Nebraska, for example, has such a statutory exception.

Justice Chin does seem to have a point:  eliminating legal malpractice claims to preserve total mediation confidentiality is, indeed, “a high price” to pay!

See these prior posts in this blog on related subjects:

Mediator Testifying as Witness?! A New Appellate Opinion on Mediation Confidentiality

Additional Comments to Prior Post on, ‘Mediator Testifying as a Witness?! A New Appellate Opinion on Mediation Confidentiality’

Compelling a Mediator to Testify: Here’s How it’s Done

P.S.  Thanks to Rick Weiler @Medarbman for tweeting-out information on this California Commission study and bringing it to our attention.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Blog at

Up ↑

%d bloggers like this: