On September 11, 2018, Governor Jerry Brown of California signed SB 954 which amends Section 1122 of the California Evidence Code and adds Section 1129. These provisions require attorneys to provide clients with a printed disclosure regarding the confidentiality restrictions in mediation and to obtain a signed written acknowledgment from the client that he or she has read and understands those restrictions.
According to Sen. Wieckowski, a member of the Senate Judiciary Committee, “Senate Bill 954 provides more transparency and a better understanding of the potential ramifications of the mediation process. . . . Confidentiality in mediation allows for more candid discussions by participants, but consumers need to know it also means if problems arise those discussions cannot be used against their attorney in a malpractice claim. This bill is an improvement to the current system and will allow consumers to make better-informed decisions regarding their legal matters.”
The Legislature in 2012 directed the California Law Revision Commission (CLRC) to examine the relationship between mediation confidentiality and attorney malpractice. The CLRC undertook a five-year study and released its recommendation late last year. It recommended permitting disclosure of otherwise confidential communications in a disciplinary proceeding of the State Bar or a cause of action for damages based upon a claim of malpractice if the evidence is relevant to prove or disprove an allegation that a lawyer breached a professional duty when representing a client.
But the CLRC’s recommendation was strongly opposed by a wide range of stakeholders, including mediators, attorneys and judges. Given the political opposition to the recommendation, Sen. Wieckowski authored SB 954 to take a more modest approach by requiring that consumers at least be provided with a disclosure explaining the confidentiality restrictions in mediation. The disclosure must be provided to clients in a meaningful and timely fashion to enable clients to decide whether or not to proceed with mediation. The disclosure must be in the client’s preferred language and on a separate, single page.
Ana M. Sambold is the founder of Sambold Law & ADR Services in San Diego, California.