Hopefully most California mediators are well-versed in case law surrounding their practice, but are a majority of the lawyers who rely on these neutrals aware of the doctrine of mediation confidentiality as it relates to potential malpractice suits? Recently, a unanimous decision at the state Supreme Court raised California’s doctrine of mediation confidentiality to a higher level. In Cassel v. Superior Court (51 Cal. 4th 113 (2011)), the California court held that a malpractice plaintiff cannot rely on statements counsel made during mediation to prove an attorney’s liability for allegedly faulty advice.
Thanks to the 2011 ruling, mediation participants are assured that California courts will strictly apply the confidentiality rules. A skilled mediator understand how to encourage an open dialogue, while also limiting unnecessary or potentially harmful exchange. According to the California court’s opinion, clients and their lawyers can continue to speak freely in mediation, even during private caucuses, confident that what they say will not be cited back to them as evidence in a later proceeding.
The ruling has sparked a lively debate within the legal community. Some mediators feel that the decision creates immunity for lawyers who don’t deserve it — lawyers who commit malpractice against their clients. However, others point to the fact that either way, to show malpractice, the client must prove a case within a case to establish liability, which requires more than just statements made during the mediation.
What are your thoughts on the matter?
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com or call him at (310) 201-0010.