New Law Effective January 1, 2019: Informed Consent To Mediation
While mediation related communications have long been confidential pursuant to Evidence Code §§ 1115-1128, the Legislature has enacted a new law to address a concern that clients may not understand that information exchanged in mediation cannot be used in a subsequent proceeding including a legal malpractice action. New Evidence Code §1129, requires the client to acknowledge, in writing, that the client understands the confidential nature of all mediation-related communications and that they cannot be used in any subsequent action, including an action for legal malpractice. The statute will provide Code-compliant language for use by attorneys in communicating with the client. Subdivision (c) of the statute will set forth specific requirements for this notification: 1) it must be printed in the client’s preferred language in at least 12-point font; 2) it must be printed on a single page that is not attached to any other document provided to the client, and; 3) it must include the names of the attorney and client and be signed and dated by both the attorney and the client. If the above requirements are met, subdivision (d) of the statute will provide pattern language for the written disclosure. The statute will also provide that notification and acknowledgement shall be obtained as soon as reasonably possible before the mediation. If an attorney is retained after the client is already bound or required to participate in mediation, the attorney should obtain the acknowledgement as soon as reasonably possible after retention. The new statute will undoubtedly lead to further discussion between counsel and their clients about how mediation confidentiality might impact a client’s ability to prosecute a legal malpractice action. But that discussion is apparently what the legislature would like to see. The full text of Evidence Code §1129 will read as follows: 1129. (a) Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. (b) An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in subdivision (a). (c) The printed disclosure required by subdivision (a) shall: (1) Be printed in the preferred language of the client in at least 12-point font. (2) Be printed on a single page that is not attached to any other document provided to the client. (3) Include the names of the attorney and the client and be signed and dated by the attorney and the client. (d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a): Mediation Disclosure Notification and Acknowledgment To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following: • All communications, negotiations, or settlement offers in the course of a mediation must remain confidential. • Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings. • A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body. • A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation. This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation. I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation. NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney. [Name of Client] [Date signed] [Name of Attorney] [Date signed] (e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.