Beginning on January 1, 2019, lawyers will need to make sure clients understand existing confidentiality protections for mediation communications before the client agrees to participate in mediation. Or if the client has already agreed to mediation prior to seeking counsel, then the lawyer must obtain the client’s informed consent as soon as possible after his or her retention. To be clear, the new law, Senate Bill No. 954 does not change existing laws regarding confidentiality in mediation; it only requires attorneys to take extra steps to ensure that clients understand the scope and effect of confidentiality in mediation.
The recently signed SB 954 will require lawyers to provide printed disclosures to their clients about confidentiality restrictions in mediation and to obtain their clients’ signatures, confirming their clients understand. The disclosure needs to be in the preferred language of the client, in twelve-point font, confined to one page on a stand-alone document, and must be signed and dated by the attorney and the client.
The new law specifies the contents of a sample form disclosure which attorneys can elect to use for easy compliance. The disclosure succinctly summarizes California’s mediation confidentiality laws as laid out in Sections 703.5 and 1115 through 1129 of California’s Evidence Code, explaining to the client that these sections ensure that:
- 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.
- All communications between the attorney and the client 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 the client later decides to sue their attorney for malpractice because of something that happens during the mediation.
If an attorney fails to comply with the new disclosure and acknowledgment requirements, this cannot be used as a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation. However, the attorney can still be subjected to a disciplinary proceeding about his or her compliance with the new law and communications or writings relating to the attorney’s compliance may be used in the disciplinary proceeding, as long as those communications or writings do not disclose anything said or done or any admission made in the course of mediation.
Since the law will go into effect immediately in the new year, attorneys should review their cases now and determine for which of their cases, if any, the parties have plans to participate in mediation in the new year. Attorneys should then allow enough time to send out the required disclosure document, explain it to their client, and collect their client’s signature.