While reading this opinion (or simply this post) think about Carrie Prejean’s accusation that Larry King’s question to her — “why did you settle” –was “completely inappropriate” because (presumably) her thought process was protected by mediation confidentiality.
In yet another 2-1 opinion on mediation confidentiality — Cassel v. Superior Court — California’s Second District Court of Appeal grapples with hard facts that made bad law.
In conversations between litigation counsel and its client, Cassel, held on the days immediately preceding mediation as well as on the day of the mediation itself, Cassel allegedly told his attorney – Wasserman – that he would be willing to accept something north of $1.25 million to settle the case. On the day of the mediation, Cassel signed a settlement agreement providing for payment of $1.25 million. Cassel thereafter sued his attorney for legal malpractice, alleging that Wasserman “forced him to sign the settlement agreement for $1.25 million, rather than the higher amount he had told Wasserman . . . was acceptable.” (if you’re interested in the 411 on mediation advocacy malpractice, see my recent post Yet Another Path to Attorney Malpractice in Mediation Proceedings: Coerce Your Own Client)
Before trial of the malpractice action, Wasserman filed a motion in limine asking the trial court to preclude the introduction into evidence of any testimony concerning Cassel’s [otherwise attorney-client privileged] communications about the sum he was willing to accept in settlement. The trial court granted the motion, holding that these communications – undeniably conducted in preparation for the mediation – were protected by mediation confidentiality under both the plain language of Evidence Code section 1119 and the Supreme Court decisions interpreting it.
The majority on the appellate panel disagreed for the following reasons:
With start of trial within two weeks, the meetings and accompanying communications between Cassel and Wasserman . . . were for trial strategy preparation, not just for mediation . . . The crux of the communications was that Cassel wanted his Wasserman Comden attorneys to honor his wishes, but they resisted to the extent, according to Cassel, that they breached their duties to him as his counsel. Neither Cassel nor Wasserman Comden assert that the communications contained information which the opposing party (or its representatives) or the mediator provided during mediation or otherwise contained any information of anything said or done or any admission by a party made in the course of the mediation. For the foregoing reasons, we conclude that the communications solely between Cassel as a client and his lawyer, Wasserman Comden, do not constitute oral and written communications made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” protected by section 1119, subdivisions (a) and (b) or communications by “participants” protected by section 1119, subdivision (c).
Huh?????? Because separate caucus mediation communications between attorney and client about the sum the client is willing to settle the case for are not communicated to the mediator or the opposing party during the mediation (especially if the attorney fails to communicate the client’s expressed wishes?) they cannot be considered “communications made ‘for the purpose of . . . a mediation consultation”??
This is perhaps the most convoluted reasoning of any appellate opinion in memory. I’d prefer a decision that just came right out and said something along the lines of – sure the communication falls squarely within the language of the confidentiality statute, but we don’t think it ought to apply where a client is suing his attorney for duress in the course of a mediation proceeding. The Court is justifiably worried about saying that because the Supreme Court has repeatedly cautioned the lower courts not to make court-crafted exceptions to mediation confidentiality. (See Simmons v. Ghaderi)
Intellectual dishonesty never got any court anywhere near the goal of justice. This might just have been the case that made the Supreme Court relent and say, “o.k., in this extremely narrow circumstance, we’ll permit an exception to the statutory provision.” If the Supreme Court refused to budge, this case just might have persuaded the California legislature to make a few necessary exceptions to mediation confidentiality. Now, unless the appellate court reconsiders and follows the wisdom of the dissenter, Californians won’t be given the opportunity the common law creates to “course correct” the law-making process to meet the challenges of unintended legislative consequences.
As the dissent correctly observes:
In the end, the majority?s analysis of section 1119, subdivision (a), seems to be founded primarily on its concern that protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation. That may well be true; but, respectfully, it is not our role to make that determination. Rather, it is for the Legislature to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so.
For those more interested in Prejean than in mediation confidentiality, here’s an analysis of the Prejean/King dust-up with the Prejean money quote: “I don’t see anywhere in the Bible where it says you shouldn’t get breast implants.”
And if you think mediation can’t be as dramatic as courtroom “gotcha” moments, here’s the proof that anything at all can and does happen in those “confidential” rooms:
It was reported by TMZ.com, who broke the story of the lawyers’ gambit, that the lawsuit was settled within seconds of the sex tape being shown to Prejean. Just to make the episode even more embarrassing for the 22-year-old, her mother was also attending the meeting at which the tape was shown.
Description of the X-rated Perry Mason moment here.
Do remember that California law only precludes parties from: (a) introducing confidential mediation communications into evidence; and, (b) obtaining evidence of those communications in discovery. Although sub-section (c) of section 1119 broadly provides that mediation communications “shall remain confidential,” no one to date has suggested that disclosure of those communications gives rise to a cause of action in favor of any party opposing their disclosure to the general public.
Our thanks to our students and our colleagues–in various disciplines–who have helped us thus far. Don’t abandon us now: we’re still far from the goal. A special word of appreciation...By J. Herbie DiFonzo, Mary O'Connell