No-exception confidentiality laws bar evidence of legal malpractice occurring in mediation, according to California appeals court decision

California decision bars evidence of legal malpractice in underlying mediationCritics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.

In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…

The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.

The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.

(With thanks to colleague David Hoffman for alerting me to this decision.)

8 responses to “No-exception confidentiality laws bar evidence of legal malpractice occurring in mediation, according to California appeals court decision

  1. I am very troubled by the court’s decision, not because it reached the wrong decision, but from the standpoint that it displays a lack of understanding of what happened in that mediation. I am assuming that the attorney accused of settling without the consent of his client was present at the mediation with his client, and that an agreement was signed at the mediation by both the attorney and the client. That says to me that the client entered into a mediated agreement after both his/her attorney and the mediator explained to him/her in detail what the agreement entailed. It appears that this is a mediation that involves a client who had second thoughts and remorse after mediation, and was trying to back out of the agreement by accusing the lawyer of malpractice. In any malpractice case, informed consent is the key to the issue of whether malpractice occurred, and the client’s signature on the agreement satisfies me that no malpractice occurred. The courts should zealously guard the confidentiality of the mediation process while informing the public of the role of the mediator and the attorney at mediation. To imply that the “rule of law” was somehow circumvented by the mediation process does a mis-service to mediators everywhere.

  2. Diane Levin

    Mark, thanks so much for your comments. I appreciate that you weighed in here on this issue.Just to be clear, in no way am I implying that this particular case has subverted the rule of law. The judge had no choice but to follow California law and legal precedent. I do however agree with the judge’s concern about the outcome of this case–and about the unintended harm to justice and the rule of law that stringent confidentiality laws without public policy exceptions can do. While I do not say that this case subverts the rule of law, I do say that mediation confidentiality laws without public policy exceptions can indeed thwart justice and frustrate fair results. As a mediator, I support such exceptions to mediation confidentiality statutes. Mediation should not be used as a shield to conceal wrongdoing, malpractice, or illegal conduct. The critics in that regard are right to raise hard questions about the impact that ADR may have on justice and the rule of law–and mediators and other ADR practitioners should not shy away from facing them. Consider for example the use of mandatory arbitration clauses in consumer and employment contracts–contracts in which there exists great imbalance in bargaining power–and all resolutions are reached behind closed doors.

  3. There are a couple of interesting elements here.There is the phenomenon that Mark highlights, and that is the post mediation/post settlement reversion. the client who comes out of mediation or some other settlement forum with a deal or progress and who then reverts to their earlier position.What happens there? I am aware in some cases that I have had that the client’s friends or families, their sponsors, or what Ury would call the “Galleries” will have been putting pressure on them.”Why did you agree that? How could you let him/her get away with it.” and the like.In turn it raises a challenge for us to create some system whereby we can anticipate those other influences and better handle them.The second issue is the one of complaints against our work and our systems generally. We do have to listen to the criticism and take it on board. When issues such as these arise we are given a valuable insight as to just how other parties may perceive ADR approaches. If we listen fully we can better understand just how far we have got and what work still needs to be done.

  4. Diane Levin

    Great points. Buyer’s remorse is a real concern. The question is, what can mediators do to minimize the likelihood that either or both parties will experience it? What is our responsibility as practitioners? A question I will often ask is, “How could this agreement be improved?” Is it possible that the mediator in this case may have missed the warning signs? What opportunity did the client himself have to speak or express his needs? Or did the mediator speak only with the lawyers? What were the mediator’s own views on settlement and in what way did they influence the parties’ decision to settle? Did he push the parties to compromise (“You’ll give a little, get a little and both walk away equally unhappy”) or was he using a Fisher/Ury style framework for negotiating?We’ll never know. But I’m wondering whether it’s fair to lay the full responsibility for the outcome on the client himself–dependent upon his lawyers for advice, with a retired judge conducting the mediation–was his voice heard or was it overlooked?I appreciate that you both have weighed in here. Thanks for making these points and joining the conversation!

  5. Ivan K. Stevenson

    As usual I am astounded by the comments of people who do not bother to check the facts of a case. The issue of the Wimsatt case was not to prevent the plaintiff from obtaining the briefs, but rather to prevent the plaintiff from questioning the defendants, the defense counsels and the mediator about the mediation, the contents of the mediation brief and their information leading to the mediation brief. The Court of Appeal simply upheld the confidentiality of the mediation process. The plaintiff’s attorney in the underlying lawsuit is still fair game for malpractice. By the way, if you are wondering how I know this, I wrote the amicus brief, but before doing so, I reviewed the entire record that was before the lower court and the Court of Appeal. I also took the time to discuss certain facts regarding the case with the one of the counsels. I think that the Court of Appeal’s decision was correct for all of the right reasons. As a mediator I do not want to be subject to a deposition over a my position as a mediator in a case. I think that Justice Klein was correct during argument in saying that in her opinion, if a case settles at mediation, no further litigation should be permitted from that mediation other than enforcement of the settlement reached. As an attorney, I do not want to be deposed by an opposing side regarding my observations and negotiations at a mediation. I saw the same commentary after the Foxgate case, where people had a lot of comments about the action of the defense counsel, without even checking with the participants of that mediation. In the future, do a little investigation before writing an article or blog.

  6. Diane Levin

    Ivan, thanks for your comment. I welcome hearing from someone who not only wrote an amicus brief but took the time to review the entire record. And you are absolutely right to demand thoroughness of writers and bloggers. However I wonder whether you read my post with the same care. I disagree with nothing you say. I agree that the decision of the Appeals Court was the correct one, although perhaps for reasons different from your own. In fact I say this in a comment. In my post I reported the decision, quoted the judge’s language expressing concern about the lack of public policy exceptions to the statutes, pointed to one legal blogger’s reaction (which I don’t believe is an isolated one, judging from conversations I have had with colleagues), and raised some questions for mediators–questions which in my opinion were appropriate to ask. Nothing more. For what it’s worth, as a mediator I agree with you that I do not wish to be subpoenaed. And, like you, as an attorney I certainly would not want to be deposed regarding my observations and statements during a mediation. Confidentiality is the cornerstone of mediation. It encourages discussion, reflection, and ultimately settlement. It is integral to the mediation process. I imagine that your views are no different than mine in that regard. At the same time, I do think it’s fair to ask, as I did in my post, whether confidentiality should be absolute. I do not think it should. I do not think it supports justice. It’s why I would like to see the Uniform Mediation Act enacted here in Massachusetts. The exceptions it carves out will not in my opinion undermine public confidence in mediation. But the continuing absence of exceptions may. That was the point of my post. I concede that I may have expressed myself badly if I left you confused, as I evidently did, about my meaning or my intention, but it was not for failure to do my homework before hitting “publish”. Thanks again, Ivan. I appreciate greatly that you stopped by and took the time to comment.

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