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Scott's Mediation Tips > Malpractice Protection?
Mediation Confidentiality May Protect the Lawyer From a Malpractice Claim

In Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 the Second Appellate District interpreted mediation confidentiality to be broad enough to potentially protect attorneys against claims for breach of fiduciary duty arising out of the mediation process. In Wimsatt, a party who had settled a personal injury lawsuit during mediation thereafter sued his attorney in the underlying action for breach of fiduciary duty. The client claimed that his attorney had significantly lowered the settlement demand - - without the client's permission - - which ultimately reduced (in the client's mind) the amount he was able to obtain by way of settlement at the mediation.

The opinion in Wimsatt focused upon whether or not, in the subsequent malpractice action, the defendant attorney could preclude from disclosure or other use: (1) the mediation briefs; (2) e-mails sent the day before the mediation that quoted from the mediation briefs; and, (3) an oral communication made by plaintiff's counsel to defense counsel allegedly lowering the settlement demand between two mediation sessions. Although reluctant to do so, based upon its view of the current state of mediation confidentiality the court held that the mediation briefs and e-mails sent the day before the mediation that quoted from the brief were governed by the mediation confidentiality provisions of Evidence Code Section 1119(b) and inadmissible. However, although not ruling out the possibility that discussions prior to the mediation may also be covered by the mediation privilege, the court determined that the defendant law firm had not met its burden to show that the conversation between two mediation sessions was necessarily protected by mediation confidentiality. Rather, the Court stated that, to do so, "the timing, context, and content of the communications all must be considered."

What is most notable about this opinion is the lengths to which the court went to make editorial comments concerning the scope of mediation confidentiality and the harms which may result. The court began the opinion by stating: "The Supreme Court has held that the mediation statutes are to be broadly construed to effectuate the legislative intent, even if there are conflicting public policies and even if the equities in a particular case suggest a contrary result."

As it related to this particular case, the court noted that "[p]reventing [the plaintiff] from accessing mediation-related communications may mean he must forego his legal malpractice lawsuit against his own attorneys," acknowledging that "the mediation participants accused of misconduct might be protected."

The court opined that: "[t]he stringent result we reach here means that when clients, such as Kausch, 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 be unpunished and the administration of justice is not served."

The court went on to invite action by the legislature to reconsider "California's broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies to be considered." The court concluded by indicating that "the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute."

Of course, I still believe that mediation -- used properly -- is one of the best methods to resolve litigated cases. However, because the opinion in Wimsatt contains a comprehensive review of the cases which discuss mediation confidentiality in California and the public policies involved, I would commend to you a complete reading of that opinion.


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