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We are big believers in mediation.  But as a result of a fairly recent California Supreme Court case, mediation has become a potentially terrible trap for clients.


The Basics

There is a very strong chance that if you are involved in a lawsuit in California, you will participate in a process called mediation.  Mediation involves the use of a third party (usually a retired judge or lawyer who is hired by both sides) who tries to settle (mediate) the dispute.  It can be something that the Court orders the parties to go through, but usually, it is something that parties, through their attorneys agree to voluntarily participate in.  Mediation should not be mistaken for its close cousin, the mandatory settlement conference, which is a process typically involving an active duty judge, or a judge pro tem (sort of deputized judge).

This is not the place to explain in detail how the process works, and there are many good articles on the internet that discuss how to prepare for a mediation, and what happens during the process.  However, it is the place to alert you to a potentially serious problem.

The Origin Of The Problem

In 2011, the California Supreme Court decided a case and held that everything that is said at a mediation, including even discussions that a client has with his or her own lawyer, are absolutely confidential.1   To be perfectly clear, everything that is said, done, written or otherwise related to a mediation, whether during or in preparation for a mediation, is absolutely confidential, and cannot be used for any purpose.

While the rule of maintaining the confidentiality of communications at mediations is extremely important to the process, it has also turned into a potential minefield for clients because what your lawyer says to you in preparation for and during the mediation cannot be used to support a claim for malpractice OR EVEN FRAUD.  It unfortunately shields attorneys from having to take responsibility for anything they do or say in connection with mediation and has even become a weapon used by unscrupulous lawyers.

The Wrongdoing

In the approximate two years since the California Supreme Court made its pronouncement and the problem has been publically recognized (and discussed) we have seen the impact of the problem about a half dozen times and it typically arises in one of two ways.   

First, we have seen several situations where, to induce the client to accept an offer that the client would otherwise reject, the attorney agrees to a reduction in his fee.  For example, the other side offers $200,000 during the mediation to settle the case.  The client feels the offer is not enough. The attorney wants to settle the case and would normally get 40% for his contingency fee. But to convince the client to accept the offer the attorney tells the client during the mediation that it is early in the litigation process, he hasn’t done all that much work, and is willing to reduce his fee to 20%.  The client agrees.  After the mediation, the attorney reneges on the offer to reduce his fee.  The client cannot use the discussions that took place at the mediation to support his claim. Indeed, the client will be blocked from introducing any evidence about the attorney’s offer to reduce the fee.  The client could even have a witness who was present at the mediation and available to testify about the attorney’s promise and still be blocked from introducing the evidence and enforcing the promise.  Incredibly, even if the mediator heard the promise of the attorney and knew the client relied on it in accepting the offer, the client could not use the testimony of the mediator.  It is an incredible injustice.

The second way we are seeing the problem arise is that during the mediation process the client learns about something seriously wrong with his case that is the result of an attorney’s mistake that prompts the client to settle for a much smaller amount than the case might be worth.  For example, we had one case in which the client discovered (by overhearing discussions between the mediator and the attorney) that the attorney had failed to timely identify experts for the case and would probably be blocked from presenting critically important and necessary expert witness evidence. In another case, the client learned during mediation that the attorney had failed to timely oppose a motion for summary judgment that was going to be heard two weeks after the mediation, and that the failure to oppose would likely result in the loss of the client’s case. In the resulting bizarre twist of logic, in each of these cases, while the client could sue the attorney for malpractice based on the attorney’s failure to designate experts, (or oppose the motion for summary judgment), the client would be prohibited from presenting evidence about what he had learned at the mediation and that it had motivated him to settle, even if the lawyer himself had admitted to the client and the mediator that he had screwed up and it was likely going to cost the client the entire case.  

How To Preserve Your Right To Pursue Mediation Related Claims Against Your Attorney

The legislature is considering changing the law to allow clients to use mediation related information to make or support malpractice and other claims against their attorneys, but the process is very slow.2   Until the legislature acts, the only way to be able to pursue any claims against your attorneys for their actions in connection with mediation is by a mediation confidentiality waiver.  The waiver is voluntary, so your lawyer is not required to consent to it.
The waiver need only be between you and your attorney, and can be obtained before, during or even after the mediation as discussed below.

There are essentially four points in time that you can ask for the waiver. First, before you sign your fee agreement with your lawyer. At that point you can ask that it be included in the fee agreement. Second, after you sign the fee agreement, but before mediation. Third, during mediation (for example, if your attorney promises to reduce his / her fees if you agree to settle), and finally, after the mediation.  

Our Recommendation

Chances are, you will not have learned about this problem before you hire your lawyer, so you are not going to be in a position to ask for the waiver before the fee agreement is signed.

We do not recommend that you ask for it before the mediation.  Asking for it will raise suspicions on the part of your attorney, and/or create a potential riff when none may be necessary.  Remember, the only time you need the waiver is if your lawyer has made promises on which you’re relying in settling the case, or you’ve decided to settle the case based on critically important information you’ve learned at the mediation.  

If your lawyer has made certain promises to you to convince you to settle (for example, he will reduce his fee, or he will waive his right to recover costs, or he will help you settle your medical liens, or he will continue to represent you for free on some related case or matter), then do the following:  (1) ask for the promise to be in writing at the mediation, and (2) ask for the confidentiality waiver.  REMEMBER:  It is not enough to get just the promise in writing; you will be blocked from introducing the writing even if the lawyer has signed it.  You must get the promise in writing AND the confidentiality waiver.  Insist on it before you sign anything resembling a settlement agreement at the mediation. It does not have to be a formal document; it can be hand written as long as it states the agreement, contains the confidentiality waiver language we’ve set out below and is signed by you and your lawyer.  It does not need to be witnessed.

If you are uncomfortable about getting the waiver at the mediation, or are just unsure of what to do, ask for the settlement offer being made by the other side to be kept open for at least 48 or 72 hours, which is not unusual at all.  This is not a car lot or some television offer that will expire unless immediately accepted.  This is a big decision and does not have to be rushed into, no matter what your lawyer or the mediator says.  During the 48/72 hour period the offer is open, you can discuss what your lawyer is willing to do, get it in writing, and get the waiver of confidentiality.

Here is a sample waiver that you can use.

Waiver of Confidentiality

The parties to this agreement are ____________________________________[insert attorney name(s), law firm name(s), and client name(s)] (hereinafter referred to collectively as “the parties”). This agreement is/was entered into on _______________________ [insert date]. The parties waive the effect of California Evidence Code Section 1119, and agree that any information related to any mediation in which ______________________[insert attorney name(s)] and/or ________________________[insert law firm name(s)] represented ______________________________[insert client name(s)], may be admitted as evidence only in any dispute between the parties arising out of the attorney-client relationship between the parties.

 _______________           _______________
Attorney Name                  Client Name





[1] The California Supreme Court in Cassel v. Sup. Court (Wasserman, Comden, Casselman & Pearson, L.L.P.), 51 Cal.4th 113 (2011) did not allow a client to use any evidence of the attorney’s wrongdoing during and before a mediation to support the client’s malpractice claims. The client claimed that his attorney forced him into a settlement at a mediation through the use of bad advice, deception and coercion. However, the client could not pursue his claims against the attorney or the law firm. He was not allowed to present any of the evidence of his attorneys’ wrongdoing, because all of it occurred during or in connection with the mediation.



[2] For those of you interested in a more detailed (and scholarly) discussion of the situation, the Honorable Michael D. Marcus, a retired judge of the State Bar Court (which rules on attorney discipline matters), has written a lengthy and excellent article “What Happens During Mediation” 34-DEC L.A. Law. 17, which we encourage you to read. (The full article can be seen at: