In the spring of 2013, the California Law Revision Commission began its study K-402- on creating an exception  to mediation confidentiality for attorney malpractice and other attorney misconduct. In June 2017, it issued its Tentative Recommendation which I have extensively discussed in previous blogs. Although, the opposition  to the Tentative Recommendation was overwhelming , the Commissioners voted to go forward and recommend to the Legislature to enact  its proposed Evidence Code Section 1120.5.

Well, it appears that the various Legislators were listening to the overwhelming opposition. None was willing to sponsor the proposed legislation to create an exception to mediation confidentiality for attorney malpractice and other misconduct  The deadline for introducing new bills into the California  legislation was February 16, 2018.  While  there is always the possibility that a bill that was introduced could be gutted and replaced with this proposal, it seems  highly unlikely. Thus, 4 years of work and over 4000 pages of Memoranda are now history. I am told that this is the first time in 13 years that a recommendation of the Commission was not pursued  by the Legislature. Thus, for now,  all discussion about creating an exception to mediation confidentiality for attorney malpractice and other misconduct in the extensive format proposed by the Commission is dead.  (Or, DOA!)

However, on January 30, 2018, Senator Wieckowski introduced legislation ( Senate Bill 954) to add  Evidence Code Section 1129  which would require

an attorney representing a person participating in a mediation or a mediation consultation to inform his or her client of the confidentiality restrictions related to mediation, as specified, and to obtain informed written consent from the client that he or she understands the restrictions before the client participates in the mediation or mediation consultation.

 The proposed section provides:

   Evidence Code Section 1129.

 Before engaging in a mediation or a mediation consultation, an attorney representing a client participating in the mediation or a mediation consultation shall inform his or her client of the confidentiality restrictions as described in Section 1119, and obtain the client’s written consent to the restrictions, in a form acknowledging that the client is informed of the restrictions and understands them.

While this  bill lacks the specifics of what the “informed consent” should contain (i.e. exactly how detailed must the attorney be in explaining mediation to the client), and does not discuss any remedies for the failure of the attorney to fulfill this obligation, the bill appears to have a lot more support from the mediation community than did the efforts of the Commission. Without doubt, there will be input from various individuals and organizations on how to improve the bill.  Thus, I invite you to join in the conversation and comment!

If you have comments, please do not hesitate to share them with Senator Bob Wieckowski’s office:  State Capitol, State Capitol, Room 4085, Sacramento, CA 95814-4900; (916) 651-4010 or his District Office: 39510 Paseo Padre Parkway, Suite 280, Fremont, CA 94538; (510) 794-3900. Alternatively,  or in addition, please also send your comments to Senator Hannah Beth Jackson, Chair, Senate Judiciary Committee, State Capitol, Room 2187, Sacramento, CA 95814 (must be mailed or faxed). Please copy Senator Wieckowski c/o <> .


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