The statutory framework for California mediation set forth in California Evidence Code Sections 1115-1128 imposes ethical duties on lawyers representing clients (whether or not a lawsuit is filed).
Definitions are in Evidence Code § 1115:
(a) “Mediation” means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.
(b) “Mediator” means a neutral person who conducts a mediation. “Mediator” includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.
(c) “Mediation consultation” means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.
Strict statutory mediation confidentiality is established in § 1119:
(a) No 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.
(b) No writing, as defined in Section 250, that is prepared 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 writing 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.
(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.
The definitions of mediation apply to “disputants” (Evidence Code § 1115 (a)), a term not limited to a “party” as defined in California Rules of Court (“Cal. Rules of Court 1.6 Definitions…(15) ‘Party’).
Lawyers have long been authorized to make tactical decisions for clients as long as the client’s substantive rights are not waived or lost (Gagnon Co., Inc. v. Nevada Desert Inn, Inc., 45 Cal. 2d 448, 460; A lawyer is not authorized…to impair the client’s substantive rights or the client’s claim itself. Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404).
Evidence Code §§ 1115-1128 impair a disputant’s right to use any evidence arising before, during or after a “successful” mediation to sue anybody over the resulting outcome of the mediation. A lawyer is not authorized to “agree” to mediation without the client’s authorization.
A lawyer should carefully inform a client (in writing) that there is a statutory bar against using any writings, statements or representations made in mediation, whether inaccurate, misleading, false or fraudulent against any person including disputants or the client’s own lawyer – and have the client accept the benefits and risks of mediation in writing.
About the author:
John Mounier, Elder Protection Attorneys, practices Elder Protection Law and Animal Law in San Francisco and Los Angeles.