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<xTITLE>No-Exception Confidentiality Laws Bar Evidence Of Legal Malpractice Occurring In Mediation, According To California Appeals Court Decision</xTITLE>

No-Exception Confidentiality Laws Bar Evidence Of Legal Malpractice Occurring In Mediation, According To California Appeals Court Decision

by Diane J. Levin
June 2007

From Online Guide to Mediation

Diane J. Levin

Critics 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:

California decision bars evidence of legal malpractice in underlying mediation

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.)

Biography


Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property issues, and serves on numerous mediation panels, including the United States Equal Employment Opportunity Commission. Training and coaching are an enduring passion -- she has taught thousands of people to resolve conflict, negotiate better, or become mediators -- from Croatian judges to Fortune 500 executives.

 

A geek at heart, Levin consults on web design and social media to professionals.  She blogs about ADR at the intersection of law, science, and popular culture at the award-winning MediationChannel.com, regarded as one of the world's top ADR blogs.  She also tracks and catalogues ADR blogs world-wide at ADRblogs.com, where she has created a community for bloggers writing about constructive ways to resolve disputes.

 

web site: http://dianelevin.com



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