California Law Revision Commission Mulls Recommending Exception To Mediation Privilege
In This Evidentiary Privilege May Stop At The Border, I noted that Section 1119 of the California Evidence Code establishes a broad mediation privilege:
No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
Cassel v. Superior Court, 51 Cal. 4th 113 (2011). That holding began when a mediation party sued the lawyers who represented him in the mediation. The California Supreme Court held that the mediation privilege applied to all communications between the unhappy client and his lawyers for the purpose of or pursuant to the mediation even if made outside the presence of the other mediation participants.
The Supreme Court’s holding caught the eye of the legislature which ordered the California Law Revision Commission to take a look at “the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct, and the purposes for, and impact of, those laws on public protection, professional ethics, attorney discipline, client rights, the willingness of parties to participate in voluntary and mandatory mediation, as well as any other issues the commission deems relevant.” 2012 Cal. Stat. res. ch. 108 (ACR 98 (Wagner & Gorrell)).
The CLRC’s study has resulted in an outpouring of comments. Thus far, it has received nearly comments from nearly 300 individuals and groups opposing any weakening of the mediation privilege. On the other side, Change.org has been sponsoring an on-line petition that has thus far attracted over 100 signatures. That petition begins with the hyperbolic and patently incorrect claim: “As a member of the public, I do not support allowing attorneys to legally commit malpractice against clients.”
The CLRC will continue its deliberations at its meeting on December 10 in Los Angeles.