Attorneys representing clients in California mediations must obtain their clients’ written, signed acknowledgement that they understand California’s mediation confidentiality laws.
California Evidence Code section 1129–new in 2019–requires attorneys to notify clients in advance of a mediation that mediation communications are, with few exceptions, inadmissible in court. Attorneys must obtain their clients’ signed acknowledgement that they have read and understand the confidentiality provisions. Here is an excerpted version of the new law.
California Evidence Code Section 1129
(a) Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions . . . and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.
(b) [Applies the same rule to lawyers who are retained after a mediation has been scheduled.]
(c) The printed disclosure required by subdivision (a) shall:
(1) Be printed in the preferred language of the client in at least 12-point font.
(2) Be printed on a single page that is not attached to any other document provided to the client.
(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.
(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a):
Mediation Disclosure Notification and Acknowledgment
To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:
- All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
- Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
- A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
- A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.
This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.
I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
[Name of Client] [Date signed]
[Name of Attorney] [Date signed]
(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.
The new law does notrequiremediators to confirm that all counsel have complied with section 1129. I will mention it in the initial joint session, not out of any duty to do so, but to help attorneys, especially out-of-state attorneys representing clients in California mediations, remember the new procedure.
It’s a simple question: “Does any counsel still need to get the client’s signature on the Evidence Code 1129 confidentiality form?”