Los Angeles trial attorneys representing clients in mediation will have to provide a notice to their client about the confidentiality of mediation and the inability to use such communications, negotiations, offer of settlement, writings, reports, etc., even in a case for malpractice brought against the attorney.
California Evidence Code sections 1122 and 1129 became effective on January 1, 2019.
For those business litigation attorneys who participate in a mediation with their client the law now requires that the attorney (not the mediator) provide a statutory form to the client. The form contains confidentiality restrictions related to mediation. The lawyer must obtain a printed acknowledgment signed by the client stating that the client has read and understands the confidentiality restrictions.
The form discloses that all communications, negotiations or settlement offers in the course of mediation must remain confidential. Statements made in the mediation and writings prepared in connection with a mediation (such as a mediation brief) are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
A mediator’s report, opinion, recommendations or finding about what occurred in mediation may not be submitted to or considered by a court or other adjudicative body. Moreover, a mediator cannot testify in any subsequent civil proceeding about any communication or conduct that occurred at or in connection with a mediation.
In particular, all communications between the attorney and the client made in preparation for or during mediation are confidential and cannot be disclosed or used except in extremely limited circumstances even in a subsequent legal malpractice action against that attorney. Failure of the attorney to comply with these requirements does not, however, invalidate a settlement agreement reached in a mediation among parties.