Will ‘informed consent’ save mediation confidentiality?

California Supreme Court Justice Ming W. Chin's concurring opinion in Cassel v. Superior Court, 51 Cal. 4th 113, 117 (2011), appears to have been the motivation for the California Law Revision Commission's recent recommendation for a mediation confidentiality exception to Evidence Code Section 1119, in cases of alleged legal malpractice and other misconduct by lawyers.

In that case, the client accused his attorneys of coercing him into accepting a mediation settlement he alleged was not in his best interest. The client was unsuccessful in his efforts to use mediation communications because the court concluded mediation confidentiality prevented introduction of that evidence. Ironically, Cassel did eventually win his case at trial, even without the mediation communications as evidence.

Although concurring in the Supreme Court's decision, Justice Chin wrote that, while the court had "to give effect to the literal statutory language" prohibiting disclosure of the mediation communications, he was "not completely satisfied that the Legislature has fully considered whether attorneys should be shielded from accountability in this way. There may be better ways to balance the competing interests than simply providing that an attorney's statements during mediation may never be disclosed ... [T]he Legislature remains free to reconsider this question. It may well wish to do so."

The genesis of the commission's recommendation seems to have been the seed planted by Justice Chin's qualification. Although the commission has approved its final recommendation to the Legislature, they appear to have been preempted by legislation proposed by State Sen. Bob Wieckowski, a member of the Senate Judiciary Committee, who, on Jan. 30, introduced Senate Bill 954. This would add Section 1129 to the Evidence Code, relating to mediation.

According to the Legislative Counsel's Digest describing SB 954: "Under existing law, if a person consults a mediator or consulting service for the purpose of retaining mediation services, or if persons agree to conduct and participate in a mediation for the purpose of compromising, settling, or resolving a civil dispute, anything said in the course of a consultation for mediation services or in the course of the mediation is not admissible in evidence nor subject to discovery, and all communications, negotiations, and settlement discussions by and between participants or mediators are confidential, except as specified."

SB 954 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 (in Section 1119), 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 bill does not create any new exceptions to confidentiality. Instead it puts responsibility on attorneys to explain the possible consequences of mediation confidentiality and obtain written consent before proceeding. Apparently, this issue of "informed consent" as an alternative was presented to the commission on many occasions during the several years of extensive deliberations, without any response by it. In the meantime, it seems the commission's proposed new statute (Evidence Code Section 1120.5) has yet to find an author in the Legislature.

Since the idea to create exceptions to mediation confidentiality first appeared on the horizon in 2012 in the form of Assembly Bill 2025, mediator Ron Kelly has been on a determined campaign organizing opposition to the efforts the California Law Revision Commission to chip away at mediation confidentiality in California. He says he contacted Wieckowski's office and asked directly whether SB 954 is just another "spot bill" for the commission's current K-402 proposal. As a practical matter, a spot bill is a legislative maneuver used as a non-substantive "placeholder" whose contents will be replaced later with substantive provisions.

Kelly said he has been assured by Wieckowski's legislative director, that SB 954, "is the Senator's approach to improving disclosure about confidentiality to clients prior to mediation, given the lack of consensus on the K-402 study. It is not a vehicle for the CLRC's proposal." On this basis, Kelly intends to strenuously urge the numerous groups who opposed the commission's current proposal to instead formally support SB 954 as a reasonable alternative.

I contacted the senator and inquired about the background for his taking a different direction with SB 954, from what the CLRC has proposed. The response I received from him through his office was as follows:

"SB 954 calls for clients before participating in mediation to give their informed written consent that they understand the confidentiality restrictions. This bill represents a positive step to ensure clients have a greater understanding of their rights as they consider mediation services.

"While I appreciate the many years spent by the California Law Revision Commission on this issue, the CLRC's recommendation was met by broad opposition from several groups. SB 954 is a reasonable approach with a much greater chance of implementation. It will improve upon the status quo without having an adverse effect on mediation services."

According to an email by mediator Rachel Ehrlich regarding SB 954, posted by a member of the Southern California Mediation Association to the organization's list serve, "February 16 is the deadline to introduce bills for this legislative session." She is quick to clarify that SB 954 is not an outright replacement of the commission's recommendation because the approaches are not mutually exclusive. Ehrlich says she is "in favor of informed consent because it means whether the law stays the same or changes, the novice mediation participant's first introduction to the concept of mediation confidentiality will not be the day of the mediation session."

However, Ehrlich also notes, "one change I would support being made to SB 954 is something indicating the written disclosure required in the statute is admissible (we wouldn't want the disclosure or documents in which it might be contained such as an engagement agreement, to be inadmissible merely because they mention and explain mediation)." She wants others to know they are welcome to contact her and looks forward to discussions with interested persons as this bill makes its way through the legislative process. People who are supportive of SB 954 and its future should also feel free to reach out directly to Kelly.

It remains to be seen whether clients will exercise their right of self-determination to participate and continue in mediation, if they are aware by doing so their lawyers (and perhaps others) may be insulated from subsequent liability for wrongful conduct in connection with the process. And, further, will mediation continue to be the alternative dispute resolution method of choice when informed consent is required by statute?