Senate Bill Requiring Disclosure Of Confidentiality Restrictions Is A Compromise That Does Not Require Loosening Of Confidentiality Restrictions.
As a consequence of California's Evidence Code provisions, and the California Supreme Court's decision in Cassel v. Superior Court, 51 Cal.4th 113 (2011), mediation confidentiality prevents a party to a mediation from using confidential information obtained in the mediation to sue his or her attorney for alleged professional negligence occurring at the mediation. Senate Bill 954, which is expected to soon become law, will require attorneys, except in the case of a class or representative action, to explain mediation confidentiality restrictions to their clients to a mediation or mediation consultation and to obtain written acknowledgment from the client that he or she has read and understands the confidentiality restrictions.
After seemingly endless debate about whether confidentiality restrictions should be loosened to allow clients to use information obtained in mediation to sue their attorneys for malpractice, Senate Bill 954 can be viewed as a compromise or perhaps a way to finesse the issue. It doesn't change the existing law concerning restrictions on confidential information obtained in mediation. Nor does it expand the client's rights. By requiring the client's written acknowledge that the client has read and understands the restrictions, Senate Bill 954 simply makes the client aware of the restrictions, resulting, hopefully, in informed consent. And if the client is really unhappy with the restrictions on the use of confidential information, the client can (theoretically, perhaps), choose not to mediate.
The Senate Bill includes safe harbor language that will constitute adequate disclosure. Attorneys and mediators might want to take a look at the safe harbor language now, and even begin using it. Evidence Code section 1129(d) would contain the safe harbor language, and that proposed language can be viewed by clicking the link to Senate Bill 954 above.
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