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Mediation: California's Top Court Backs Mediation Confidentiality Protections (Jan. 19).

PREVIEW:  The CPR Institute and WestLegalEdCenter will present a hot-topics seminar this Friday, noon Eastern, on the effects of last week’s Cassel decision, described below.  The session will provide one hour of Ethics CLE credit, accredited in jurisdictions nationwide.  A direct link to the course description and registration details, with an automatic 25% discount for CPR Institute members using their work E-mail addresses, can be found here.   

California’s Supreme Court last week made clear that California’s mediation confidentiality statutes are not subject to judicial construction or judicially crafted exceptions, even when policy concerns pull in the opposite direction.

In Cassel v. Superior Court of Los Angeles County,  No. S178914 (Jan. 13, 2011)(available here), the Court held that the mediation confidentiality statutes bar the use of attorney-client communications during mediation when used later as evidence in an attorney malpractice suit.  The decision reversed an appeals court, and follows a line of cases, analyzed in the opinion, on California Evidence Code mediation confidentiality protections.

The state’s top Court determined that it was compelled to reverse because the Court of Appeal’s conclusion was “a judicially crafted exception to the unambiguous language of the mediation confidentiality statutes in order to accommodate a competing policy concern.”
The concern that led to the appellate decision, and what the court here admits might be compromised, is the client’s ability to pursue a malpractice action.  In this case, petitioner Michael Cassel brought a malpractice suit against his former attorneys at Wasserman, Comden, Casselman & Pearson in Los Angeles—now known as Wasserman, Comden, Casselman & Esensten--alleging that they had breached their professional, fiduciary, and contractual duties to him during a mediation.  (The background can be found in our article on the appellate decision, here).

While the court recognized a policy concern about allowing malpractice actions to proceed, it emphasized that weighing that concern against an interest in confidentiality is exclusively the Legislature’s domain.

The Court recognized exceptions to the mediation confidentiality statutes, including those for provided in the laws themselves, and those that implicate due process or are necessary to avoid a reading of the statutes that is absurd and clearly contrary to legislative intent.

The Court, however, rejected the claim that any of these apply to Cassel.  It firmly refused to allow for any additional exceptions, insisting that there is simply no room for such exceptions to the unambiguous statutes.

--Madeleine Elkan, CPR Intern