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<xTITLE>Mediation Confidentiality: Once Again</xTITLE>

Mediation Confidentiality: Once Again

by Phyllis Pollack
April 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

According to the Second Appellate District of the California Court of Appeal, mediation confidentiality does not and will not protect attorney-client communications. In Porter v. Wyner, Case No. B211398 (April 8, 2010), (Porter v. Wyner )this appellate court held that communications between an attorney and a client during a mediation are not protected by mediation confidentiality.

In light of the California Supreme Court’s repeated pronouncements that mediation confidentiality must be given broad application without exception, I question how long this decision will remain valid. I strongly surmise that it will be short lived.

But, back to Porter v. Wyner. Plaintiffs John Porter and Deborah Blair Porter sued the Manhattan Beach Unified School District and the California Department of Education on behalf of their son who required special education services. In that suit, the Porters were represented by Steven Wyner and Marcy Tiffany, the defendants herein (“Wyner Tiffany”).

This underlying action was resolved at mediation. Plaintiffs alleged that during this mediation, Wyner Tiffany agreed to reimburse the Porters for the attorneys’ fees and costs that the Porters had previously paid and further agreed to pay Mrs. Porter for services she rendered as a paralegal.

Once the settlement was documented and concluded, the instant dispute arose, with Wyner Tiffany denying it had ever agreed to these things.

Consequently, the Porters sued Wyner Tiffany for legal malpractice and related claims. During the litigation, the defendants’ attempts to keep out all of the attorney-client communications made during the mediation on the grounds that they were protected by mediation confidentiality, were denied and rebuffed by the trial court. At trial, Wyner Tiffany, initially, filed a motion in limine to exclude all such communications but withdrew it based on the waiver argument made by the Porters.

After a jury trial, the jury returned a verdict for the Porters and against the defendants, awarding Mrs. Porter her back wages of $211,000 as a paralegal and the Porters $51,000 for breach of the attorney fee agreement.

About a month later, the California Supreme Court decided Simmons v. Ghaderi (2008) 44 Cal 4th 570. (simmons_v_ghaderi ).Based on this decision, the trial court granted Wyner Tiffany’s motion for new trial on the grounds that evidence concerning mediation in the underlying action was improperly placed before the jury. Although Wyner Tiffany also filed a motion for judgment notwithstanding the verdict (Motion for Jnov), the trial court held it was moot.

The appellate court reversed the order granting a new trial and remanded the matter back to the trial court to rule on the Motion for Jnov. It determined that mediation confidentiality applies only to communications between the disputing parties, and not to an attorney and his client, not even to those communications occurring when the mediator and/or opposing counsel are present during a mediation. (Id. at p. 16.) The appellate court reasoned that communications between an attorney and client are not the type of communications that the legislature had in mind when it provided the cloak of confidentiality to all evidence or anything said or admission made “for the purpose of, in the course of or pursuant to” the mediation process (California Evidence Code §1119). Rather, the appellate court opined that the open, candid and frank exchange promoted by the cloak of confidentiality applies to parties or disputants themselves: they are the ones who filed or responded to the lawsuit. In the appellate court’s view, the mediation is conducted to resolve the differences between the disputants or plaintiff and defendant, and not between an attorney and his client who is one of the parties. Thus, to the appellate court, communications between an attorney and his client cannot be considered to be “in the course of or pursuant to” a mediation. Otherwise, all attorney-client communications from time immemorial would be potentially covered by this privilege, which to the appellate court makes no sense. (Id. at p.11-15).

Further, the appellate court reasoned that mediation confidentiality should not trump Evidence Code §958 which waives the attorney-client privilege when breach of the attorney’s obligation to his client is at issue. ( Section 958 states:” There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship. “)

The appellate court reasoned that if mediation confidentiality were applied, this Evidence Code section would be a nullity: an anomalous situation would be created. (Id.)

The appellate court also believed that to allow attorney-client communications to be cloaked with mediation confidentiality would have a chilling effect on the use of mediations. It would preclude clients from pursuing any remedy against their own counsel for any alleged malpractice that may have occurred during the mediation process. (Id.)

As noted, it will be very interesting to see how the California Supreme Court responds to this decision. Thus far, the Second Appellate District is batting way below the “Mendoza line” on this issue: that is, in every instance in which the California Supreme Court has reviewed the Second Appellate District decision not upholding mediation confidentiality, the Supreme Court has reversed, holding, repeatedly, that mediation confidentiality means just that: confidential with no exceptions. I strongly suspect that this decision, too, will not help the appellate court’s batting average!

. . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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