Mediation Confidentiality Trumps Malpractice . . . Barely
by Michael D. Young, whose recently posted Mediation Gone Wild Document Repository Web Pages you absolutely MUST SEE!
Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California's strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to the law. Luckily, in the recently-penned decision in Wimsatt v. Superior Court (Kausch) (Cal. App. No. B196903), the appellate court fixed things up...although it was clearly not happy about it.
Wimsatt involves a legal malpractice action against a prominent plaintiff's personal injury firm. In the trial court, the former client and malpractice plaintiff claimed that the law firm "breached its fiduciary duty by significantly lowering [the client's] settlement demand without his knowledge or consent." The client claimed he first learned of this fact from the confidential mediation brief that was provided to the mediator. You can see the public policy conflict already, can't you?
In the malpractice action, the client reasonably enough wants to obtain and introduce the smoking gun mediation brief, the one on which his entire case rests. However, as California practitioners should know by now, there is a slight problem with the plaintiff's wish: Evidence Code Sections 1115 et seq., and in particular Section 1119. California is serious, and rightfully so, about protecting the very cornerstone of mediation -- confidentiality. Under Section 1119, no mediation communications, including mediation briefs, are admissible in court. This has been reaffirmed time and time again by the Supreme Court (go reread Foxgate and Rojas if you don't believe me).
So what happened in the Wimsatt case? According to the opinion, in the underlying personal injury lawsuit, the client's lawyer made a comment to the personal injury defense counsel that it might be more appropriate to discuss settlement in the $1.5 million range rather than the $3.5 million range they had been discussing before. Because of this comment, claimed the client, he was forced to settle his personal injury case at mediation for an amount that was much less than the case was worth. Despite agreeing to the mediated settlement, the client brought a malpractice claim against his attorneys claiming he could have done better if only....
Continue Reading...
(photo: Silence is Golden by
We've been following the case of
Appellate opinions concerning the enforceability of mediated settlement agreements are coming fast and furious.
We've talked before about complaints that mediators sometimes use time- authority- and fear-pressure tactics to wrest agreement from the parties. 

The California Court of Appeal for the Fourth District held in
The California Supreme Court held in 
For the (red) campaign and a video message from Bono,
I'm providing this legal update without myself reading the opinion, for which I've provided a link. I must admit that the summary sent to me is perplexing. I will read this case when I have the time and will update this post at that time. If anyone wants to beat me to it and explain the holding in a comment, please do feel free to do so. That said, here's the summary: 