Effective January 1, 2019, a new law will require California attorneys to provide a more detailed disclosure to clients participating in mediation about the confidential nature of information exchanged during mediation, including attorney-client communications. In addition, attorneys will be required to obtain a written acknowledgment from the client regarding this disclosure.
It has long been the law in California that all communications made for or during mediation are confidential and may not be used as evidence in a subsequent trial. (See, Evid. Code §§ 1115-1128.) Though there was strong disagreement by both the plaintiffs’ and defense bars, the Legislature nonetheless believed some attorneys were not adequately informing clients of the ban on the use of information exchanged in mediation in subsequent proceedings, and clients could therefore be surprised in a future malpractice action against their attorney.
The new law, which will be codified as Evidence Code section 1129, requires the client to acknowledge, in writing, that he or she understands all communications made in the mediation setting are confidential and cannot be used in any subsequent action, including an action for legal malpractice. Code-compliant notification language is provided in section 1129, subdivision (d), and subdivision (c) sets forth several specific requirements for this notification: 1) it must be printed in the client’s preferred language in at least 12-point font; 2) it must be printed on a single page that is not attached to any other document provided to the client, and; 3) it must include the names of the attorney and client and be signed and dated by both. In addition to Evidence Code section 1129, the law adds a new subdivision (a)(3) to Evidence Code section 1122 relating to the disclosure and admissibility of mediation communications in certain situations.
The notification and acknowledgement shall be obtained as soon as reasonably possible before the mediation. If the client has agreed to mediation before retaining the attorney, for example when the client is contractually obligated to participate in mediation as a dispute resolution method, the attorney should obtain the acknowledgement as soon as reasonably possible after being retained.
In light of the new notification and acknowledgment rules, we will be working closely with our clients to ensure they are aware of and understand the confidential nature of information exchanged during the mediation process.