The better part of the post: thanks for the great links for an entertaining Friday afternoon!

With respect to the Larry King interview, he clearly did not ask for the specifics of the mediation communications but rather as to why she decided to mediate the matter, I don't think the woman has an active or functioning brain cell to have been able to answer the question...she belongs on Fox news for the imbalanced...

What particularly struck my ear was the court's view that "For mediation purposes, a client and his attorney operate as a single participant." How curious.

Anyone who has ever observed the terrible struggles that can ensue between a client and his or her lawyer knows that practically speaking this is not the case. This is the mediation-within-the-mediation, often more demanding of the talents and patience of the mediator than the cross-the-table negotiations.

It calls to mind the archaic legal doctrine of coverture, that women gave up their legal identities upon marriage and that husband and wife constituted a single legal entity.

Such a problematic opinion for many reasons - Vickie, I thank you for deconstructing it so ably for your readers.

I don't see what all this dust-up is over this decision. It makes perfectly good sense to me. I am curious whether only mediators care about this or if others do as well.

Here is my take: I doubt that any client in the world would think that they were giving up their right to sue their attorney for malpractice for what he or she did during the mediation (however hard such a claim for damages may be to prove). Do you think that any attorney so advises their client of that fact? I doubt it.

Yet that is what the Wimsatt court had held, making up that fluff out of whole cloth. And the California Supreme Court had earlier held that no one could waive or be estopped from the iron-clad rigors of mediation confidentiality - in another context.

The mediation confidentialy statute was designed to keep evidence out of the hands of the parties to the mediation and here the case was apparently settled and completed (to the apparent chagrin of the unhappy client suing his former lawyer). If that is so, what is there left to protect? Why would any court stretch to find a reason to preclude the client from suing his lawyer? Is there some public policy that would justify precluding a client from suing his lawyer (if there really is a basis for the suit) just because the settlement discussions that led to the supposedly coerced now-completed settlement occured during a mediation rather than just in discussions between the parties? I don't see any reason for it.

On another note, I don't recall the Supreme Court case that said no waiver or estoppel can be allowed for the mediation confidentiality rules. I assume that was not in any context close to this situation and guess without pulling up that case that it dealt with enforcement of settlements. Didn't the supreme court just make up that rule as well by articulating a rule that no waiver or estoppel can exist with respect to these statutes notwithstanding that waiver and estoppel exists with respect to many other statutory rights one has?

While intellectual purity is always better than the converse, I think the discussion should be framed as whether or not any societal harm emanates from this supposed breach in the confidentiality of mediations IN THIS CONTEXT. I don't see any, if if much of the back and forth of participant offers or mediator comments might come into evidence. I doubt that the legislators were seeking to protect mediators or a process that was completed to the later chagrin of one of the parties and don't see any reason why the court should reach out to try to protect alleged lawyer malpractice in this context. I can envision a different result if the client were trying to unravel or escape from an enforceable executory settlement agreement in which, the adversary party would be harmed if the mediation play came in to evidence.

See, husbands and wives can have differing views on even matters of the law.......