Proposed Legislation To Do Away With Mediation Confidentiality

On Thursday, February 23, 2012, Assembly Member Wagner introduced AB 2025 before the Californai State Legislature. The proposal seeks to create an exception to mediation confidentiality by amending Section 1120 of the California Evidence Code to allow the introduction of evidence:
(4) …in an action for legal malpractice, an

action for breach of fiduciary duty, or both, or in a State Bar
disciplinary action, of communications directly between the client

and his or her attorney during mediation if professional negligence
or misconduct forms the basis of the client’s allegations against
the attorney.

Other provisions in Evidence Code section 1120 which already provide exceptions include:

(1) The admissibility of an agreement to mediate a dispute.

(2) The effect of an agreement not to take a default or an
agreement to extend the time within which to act or refrain from acting in a pending civil action.

(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute.

The full bill may be found at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-2050/ab_2025_bill_20120223_introduced.pdf

In sum, this proposed legislation will allow a client to bring either a civil action or disciplinary action before the State Bar against her attorney if she believes that her attorney breached her fiduciary duty or committed legal malpractice, professional negligence or misconduct during a mediation. It does not amend any other sections of the California Evidence Code to allow either the mediator or the other participants to the mediation to testify as to what occurred during the mediation. They must remain mum, bound by mediation confidentiality.

On March 8, 2012, this bill was referred out to the Committee on the Judiciary for further consideration.

If you wish to comment on the proposed legislation, AB 2025, including suggested amendments, please contact its sponsor, Assembly Member Donald P. Wagner either at his district office; 3 Park Plaza, Suite 150, Irvine, Ca. 92614; telephone: 949-863-7070 or at his office in Sacramento; The State Capitol, Room 4153, Sacramento, Ca 94249-0070; telephone: 916-319-2070.

                        author

Phyllis Pollack

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… MORE >

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