On January 1, 2019, all parties to California based mediations will be required to sign a written disclosure form confirming that the client understands and agrees to mediation confidentiality. The informed consent disclosure will need to be in the preferred language of the client. The new law provides a sample form which attorneys can elect to use to ensure legal compliance with the new requirement noted below. This requirement is mandatory.
Mediation Disclosure Notification and Acknowledgment Form
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]
[Name of Attorney]
In conclusion, effective January 1, 2019, lawyers are required to obtain a written notice and acknowledgment, signed by the client and attorney, regarding mediation confidentiality. The acknowledgment must be signed: (1) before a client agrees to participate in a mediation, or (2) in cases where an attorney is retained after a client agrees to participate in mediation, as soon as reasonably possible after the attorney is retained.
Please contact us with any questions you may have regarding this important development in California law.