May 11, 2021

Volume XI, Number 131


May 10, 2021

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California Imposes New Mediation Disclosure Requirement On Attorneys

Earlier this month, Governor Brown signed new legislation (SB 954), which requires lawyers to provide their clients with a printed disclosure describing the confidentiality restrictions applicable to mediation.  This disclosure must be provided to a client as soon as reasonably possible before the client agrees to participate in a mediation.  Lawyers also will be required to obtain a printed acknowledgement, signed by their client, stating that the client has read and understands the confidentiality restrictions.

The bill was introduced in response to the legislature’s concern that clients lacked awareness of mediation confidentiality restrictions, especially with regard to communications, admissions, and writings connected to mediation that may be relevant for a possible malpractice suit against the attorney by the client.  The new law, which goes into effect on January 1, 2019, will add Section 1129 to the Evidence Code. Section 1129 contains the text of a sample disclosure that can be used to comply with the disclosure requirement.  In the interests of protecting the client, a lawyer’s failure to comply with the disclosure requirement will not serve as a basis to set aside an agreement reached as a result of the mediation.  (Sec. 1129(e)).

However, attorneys who fail to comply with the disclosure requirement risk discipline from the State Bar. An amendment to Section 1122(a)(3) makes any communications, documents, or writings related to compliance with Section 1129 fair game to be used in a disciplinary proceeding against an attorney who fails to comply with the disclosure requirement.

With the January 1, 2019 effective date of the new law fast approaching, California lawyers who regularly engage in mediation should begin making it their common practice to disclose, in writing, the mediation confidentiality restrictions and obtain written acknowledgement from their clients of the same.

© 2021 Proskauer Rose LLP. National Law Review, Volume VIII, Number 270



About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

Pietro Deserio, Labor, Employment Attorney, Proskauer Law Firm

Pietro A. Deserio is an associate in the Labor & Employment Law Department. Pietro's practice concentrates on all aspects of labor and employment law. His employment litigation practice in state and federal courts includes class and collective actions and defending claims of discrimination, harassment, breach of contract and violations of wage and hour laws. He is also a member of the Non-Compete and Trade Secrets Group, representing clients in sensitive and significant trade secret and employment matters.

Pietro litigates and counsels...