Joe is, of course, right that the parties are free to take any action they wish in a mediation. My only concern about potential malpractice actions is when the attorneys do NOT understand that "any party can renege on the deal after the mediation."

In my experience, most attorneys preparing term sheets do so in the belief that the case is being settled and that the other side CANNOT renege. I often hear them tell their clients that. And yet they don't include the "magic language" of section 1123.

If the opposition thereafter asserts that the deal is not in fact concluded and the parties engage in further litigation about the enforceability of the "deal points" I believe the client would have an actionable malpractice claim based upon his attorney's failure to follow the statutory procedures that would have prevented the agreement from being challenged.

The least amount of damages in such an action would be the attorneys' fees incurred in the enforcement proceedings and perhaps even the continued cost of the litigation itself if the "deal" is not enforced by the Court.

The purpose of this post is to make sure attorneys understand HOW to make sure the deal is enforceable if that's what they want to do. More than half of the attorneys I mediate cases for do NOT know the requirements of section 1123, something they should know so that they can adequately advise their clients about the consequences of the apparent "settlement" of litigation on the day of the mediation.

I have concerns about mediators making blanket representations that "everything in medation is completely confidential."

For example, as William Caplan points out: ". . .writings such as photographs, videotapes and raw test data, which are not privileged outside of mediation because they are not created for it,do not become privileged simply because they are produced at mediation. The test is whether the writing was prepared 'for the purpose of, in the course of, or pursuant to the mediation.'”

A question for you: in community mediation without attorneys involved, how would you suggest a mediator talk about a nuanced issue such as confidentiality? Clearly, the mediator can't give legal advice, but as a mediator I don't want to make a falsely reassuring representation that "everything is completely confidential."

Thank you.
Debra Healy

Section 1119 of the Evidence Code provides that "[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

This is the anti-Miranda assurance, i.e., nothing you say can or will be used against you in a Court of Law (except possibly in a criminal proceeding).

Whether the parties can post statements made in mediation on the internet, however, is not addressed by Evidence Code section 1119 in sufficiently clear terms to provide the parties with any assurance that the information disclosed in mediation will be treated as confidential anywhere but in a noncriminal proceeding in STATE COURT (or arbitration, etc. as laid out in the statute).

Subsection (c) of 1119 broadly specifies that "[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential" but I frankly don't know what that MEANS. Confidential from whom? The general public? Your friends and family? The District Attorney? The IRS? The Los Angeles Times, Sacramento Bee or San Francisco Chronicle?

More troubling is the specter of mediation confidences being subject of discovery and potentially admissible in evidence in federal court proceedings (see Phyllis Pollack's excellent article on this issue in the first issue of The Resolver -- posted here within the past couple of weeks).

I mediate community disputes through the L.A. County Bar Association's Dispute Resolution Services Community Mediation program in West Hollywood. The parties are required to sign a confidentiality agreement that outlines the parameters of confidentiality protections between the parties as a matter of contract. Whether a breach of that contract by either party would give rise to damages is questionable but possible given the right circumstances. Non-parties won't be bound by it - only parties. And the Federal Court and criminal State Courts won't be bound by it.

If I were a non-attorney community mediator, I'd give the anti-Miranda assurance, i.e., these conversations cannot be used in evidence against you IN A CIVIL PROCEEDING IN THE STATE COURT. If your community mediation program has a confidentiality agreement that the parties must sign, I'd make sure everyone understood it (though I must tell you that most of these agreements are full of holes and ambiguities).

I prefer to leave the parties in the good hands of the California legislature and the Supreme Court's interpretation of the California Evidence Code. I, of course, cannot give legal advice to unrepresented parties so attorney mediators are not in a better position than you are to provide assurances that what is said will never be revealed. I DO tell the parties what the California Evidence Code says. I think I'm inside the bounds to do so and believe you are as well, i.e., "here's the Evidence Code provision; I'm not a lawyer (or not allowed to give legal advice in my capacity as mediator) but when I use the word "confidential" this is what I'm thinking about. If you'd like greater protection than this, you'd have to . . . sign the Confidentiality Agreement provided by the Community Mediation Center or .. . . talk to a lawyer" or agree to the terms of that agreement here and now as part of the mediation (this would be the "transformative" mediation guideline).

Doesn't this make you want to go to law school where you can twirl even more angels on the heads of ever finer pins?

As a practical matter, the mediator is not the one who is putting something in writing. wouldn't it be the parties. As such, if an attorney fails to put something in writing, wouldn't that be attorney negligence, and not mediator negligence.