MEDIATION CONFIDENTIALITY : REVISITED ONCE AGAIN
On Thursday, November 12, 2009, the California Court of Appeal, Second Appellate District issued its opinion in Michael Cassel v. The Superior Court of Los Angeles County (Wasserman, Comden, Casselman & Pearson, LLP – Real Parties in Interest) Case No. B215215 (“Cassel”).
The plaintiff, Michael Cassel, sued his attorneys, Wasserman, Comden, Casselman & Pearson, LLP, for legal malpractice alleging that the firm forced him to sign a settlement agreement for $1.25 million, an amount less than what he was willing to accept.
The issue on appeal was whether certain communications solely between Cassel and attorneys in the Wasserman firm, made outside the presence of the opposing party, or the mediator near or at the time the mediation was scheduled should have been excluded from use at trial. The trial court ruled that the communications were protected by mediation confidentiality (California Evidence Code §§1115 et seq.) and so excluded them from use at trial by Cassel. Accordingly, Cassel sought a preemptory writ of mandate directing the trial court to vacate its order and instead admit the communications as evidence against the Wasserman firm.
The appellate court agreed with plaintiff: the communications were not covered by mediation confidentiality and so should be admitted as evidence at trial.
The appellate court’s rationale was that Evidence Code §1119 limits admissibility of communications made “for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation” with such communications being “. . .by and between participants in the course of a mediation or mediation consultation. . .” (Evid. Code §1119(a),(b) and (c)).
(Id. at p. 6).
Here, the communications were strictly between attorney and client: neither the opposing party, its counsel nor the mediator was present. Further, the communications were not even made known to the mediator. As importantly, some of the communications occurred in the two days prior to the actual mediation session.
In the appellate court’s view, the communications at issue simply did not occur within the confines of a “mediation” which it noted Evid. Code §1115 defines as “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement” (Italics added). (Id. at p.7). Thus, as the communications really had nothing to do with an actual mediation, the protective umbrella of “mediation confidentiality” could not be used to exclude their use at trial.
As one might expect, there was a dissent to this opinion. Justice Perluss disagreed with the majority believing it to have interpreted Section 1119 too literally or too narrowly. The dissent noted that Evidence Code §1119 also covers statements or admissions made “for the purpose of” a mediation, and not just in the course of “a mediation” ( Dissent at p. 2). Thus, in the dissent’s view, “private unilateral statements that are materially related to the mediation” would be covered by mediation confidentiality “even if they are not communicated to another party or the mediator and do not otherwise reveal anything said or done in the course of the mediation, itself.” (Dissent at p. 2 ).
So. . . once again the courts confronted the issue of disclosure versus mediation confidentiality but, this one time disclosure won. According to Professor Forrest S. Mosten, Adjunct Professor of Law, UCLA, the score is now: Mediation Confidentiality-7; Disclosure-1.(See, california-confidentality-cases.) Don’t be surprised to see this case appealed to the California Supreme Court.
. . . Just something to think about.
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