Potential Exception to Mediation Confidentiality

In a recent report from the ACFLS Family Law Specialist report, the California Law Revision Commission (CLRC) currently has studies underway regarding the creation of a potential exception to mediation confidentiality. As is well-known in the Santa Clara County Family Law community, all conversations in mediation are strictly confidential. This is pursuant to California Evidence Code Section 1119, which states:

No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

Evidence Code Section 1119 was enacted in 1997, which brings forth the question of why after so many years there are discussions of creating an exception to the confidentiality rules. The reason for the CLRC study is in response to the public’s reaction to the ruling in Cassel v. Superior Court, 51 Cal.App.4th 331 (2011). In Cassel, Mr. Cassel (the client of an attorney), was prohibited from introducing mediation communications between Mr. Cassel and his attorney as part of his malpractice lawsuit against said attorney. This ruling sparked a debate regarding the mediation confidentiality rule, with many making the argument that the rule allowed attorneys to get away with malpractice. As a result, Assembly Bill 2025 was crafted, which attempts to create an exception to the confidentiality rule for an action of legal malpractice or breach of fiduciary duty, if the attorney’s professional negligence or misconduct formed the basis of the client’s allegations against the attorney. Of course, the majority response from attorneys and mediators alike was not one of support.

There have been several meetings held by the CLRC regarding the enactment of a potential mediation exception. At those meetings, several members of the mediation and family law community have attended and vocalized their objections to the proposed exception. While there have been several reasons in opposition perhaps the most popular has been that confidentiality is “essential to effective mediation.” Another persuasive argument that has been made is that if such an exception were enacted, it may deter attorneys from taking part in mediation thereby leaving parties to fend for themselves in mediation and forego legal representation. In response, there was a discussion regarding potentially exempting family law mediation and collaborative law from the exception. As is well known in Santa Clara County Family Law, the Courts have a strongly favored policy of encouraging parties to take part on Santa Clara County’s settlement-based process, which includes mandatory mediation and available Settlement Officer Conferences.

Although it is unclear what the fate of the mediation exception rule is at this time, it will certainly be an interesting outcome. Fortunately, here at Mello & Pickering, LLP, with 40 years of combined experience in family law, we can help navigate you through the mediation process and ensure your best interests are protected.