On June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create an exception to mediation confidentiality (Study K-402). If passed by the legislature, new Evidence Code section 1120.5 would allow parties to pursue claims against counsel for “legal malpractice” occurring in a mediation context. All public comments should be received by the Commission no later than September 1, 2017.
The Tentative Recommendations include:
1. The exception would NOT apply in resolving a claim relating to the enforcement or rescission of a mediated settlement agreement or in a suit for specific performance;
2. Creating an exception to mediation confidentiality that would apply only in State Bar Disciplinary Proceeding, a Claim for Damages Due to Legal Malpractice, or an Attorney-Client Fee Dispute;
3. The exception would apply only to attorney misconduct in a professional capacity, that is, “when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation-that is, an obligation the attorney has by virtue of being an attorney- in the course of providing professional services.” (Id. at 135);
4. The exception would only apply to alleged misconduct in representing a client, not in serving as a mediator;
5. The exception would apply only to alleged misconduct that occurs in a mediation context. A “mediation context” includes any alleged misconduct that may occur at any stage of the mediation process, such as the during a mediation consultation, a pre-mediation telephone call, a mediation brief, a joint session, a private caucus with or without the mediator present, a mediation related telephone call et cetera. The issue is whether it relates to the mediation, and not the time or date of the alleged misconduct;
6. A mediator generally could not testify or provide documentary evidence pursuant to the exception. That is, Evidence Code section 703.5 remains in effect and a provision will be added to the proposed legislation to include a mediator’s written evidence as incompetent as well;
7. A litigant could not go to another source to obtain or learn the content of a mediator’s writing. Thus, a litigant could not go to a third-party source such as an email provider to obtain an e mail string which includes the mediator’s email messages containing substantive content unless that portion of the e mail string can be effectively redacted to protect the mediator’s substantive comments;
8. The same standard of “relevancy” would govern both the admissibility and discoverability of evidence of the alleged misconduct;
9. The exception would limit the extent of disclosure to “…only the portion of the communication necessary for application of the exception”;
10. A court could use judicial tools such as sealing records, in camera proceedings, protective orders and redaction to prevent public disclosure of mediation evidence;
11. Mediation participants would receive notice that a suit has been filed and thus be able to take steps to prevent improper disclosure of mediation communications;
12. The exception would apply even handedly to the evidence- both to prove and disapprove a claim of alleged malpractice;
13. The exception would apply to all types of evidence; not just to communications between the attorney and client during a private caucus;
14. The exception will apply to every type of mediation in all fields of law; no exceptions such as for family law mediation or mediations conducted under the Dispute Resolution Programs Act will be made;
15. The proposed legislation is to have no effect on the extent to which a mediator is or is not immune from liability under existing law;
16. The exception has no provision for the issuance of sanctions by a court against a party who brings an unsuccessful malpractice action; and
17. The exception will apply only prospectively- to all mediations occurring after its operative date.
(See, Tentative Recommendation at pages 133-141.)
I urge everyone to peruse, if not read, the full Tentative Recommendation and to provide comments to the California Law Revision Commission, 4000 Middlefield Road, Room D-2, Palo Alto, Cal 94303-4739, telephone: 650-494-1335, website:
… Just something to think about.
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