On January 13, 2011, the California Supreme Court filed its opinion in the much-anticipated case of Cassel v. Superior Court (2011) 51 Cal. 4th 113. It’s fair to say the Cassel decision strengthened mediation confidentiality in California. The decision provided a detailed analysis of mediation confidentiality statutory authority and cases. It essentially held that mediation confidentiality even overrides malpractice plaintiffs’ interest in gathering evidence against attorneys regarding mediation-related activity.
However, it should be noted that there is still a loose end in the aftermath of the Cassel decision. That is the case of Porter v. Wyner which is still pending in the Second Appellate District of the California Court of Appeal. The Porter case has taken a long and convoluted procedural journey that still is not over (and may just have started).
Porter is also a case involving attorney malpractice related to mediation confidentiality. The Second Appellate District filed a decision in the Porter case on April 8, 2010 against the attorney defendants regarding an assertion of mediation confidentiality related to certain evidence. Naturally, the attorney defendants appealed.
On July 14, 2010, the California Supreme Court granted the attorney defendants’ petition for review. However, action was stayed pending the above-referenced Cassel case. Not surprisingly, Cassel had a major impact on the later Porter case. Here are the most recent developments.
On April 20, 2011, the California Supreme Court vacated the Second Appellate District’s decision and remanded the case back to the Second Appellate District for reconsideration in light of Cassel. As of this writing, the Porter case had not been settled or otherwise resolved. The parties have filed supplemental briefing and briefing is now closed.
Porter raises some interesting questions. Will the Second Appellate District panel of justices strictly and narrowly apply the holdings of the Cassel case? Or will the panel attempt to distinguish Cassel and once again try to curb the scope of mediation confidentiality in California? If the panel does cut back the scope of mediation confidentiality, are we looking at yet another trip back to the California Supreme Court? Who knows for sure? But stay tuned.