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California's mediation confidentiality statutes do not create a privilege in favor of any particular person. Instead, they serve the public policy of encouraging the resolution of disputes by means short of litigation. The mediation confidentiality statutes govern only the narrow category of mediation-related communications, but they apply broadly within that category, and are designed to provide maximum protection for the privacy of communications in the mediation context. A principal purpose is to assure prospective participants that their interests will not be damaged, first, by attempting this alternative means of resolution, and then, once mediation is chosen, by making and communicating the candid disclosures and assessments that are most likely to produce a fair and reasonable mediation settlement. To assure this maximum privacy protection, the Legislature has specified that all mediation participants involved in a mediation-related communication must agree to its disclosure. Neither the language nor the purpose of the mediation confidentiality statutes supports a conclusion that they are subject to an exception, similar to that provided for the attorney-client privilege, for lawsuits between attorney and client.
The client agreed in mediation to a settlement of business litigation. Thereafter, he sued his attorneys alleging that they had obtained his consent to the settlement through bad advice, deception, and coercion and that they had a conflict of interest. The trial court granted the attorneys' motion to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and the attorneys' efforts to persuade the client to reach a settlement in the mediation. The Court of Appeal reversed, holding that when a mediation disputant sued his own counsel for malpractice in connection with the mediation, the attorneys—already freed, by reason of the malpractice suit, from the attorney-client privilege—cannot use mediation confidentiality as a shield to exclude damaging evidence of their own entirely private conversations with the client.
When a mediation disputant sued his own counsel for malpractice in connection with the mediation, could the attorney no longer use mediation confidentiality as a shield to exclude damaging evidence of their conversations with the client?
The Supreme Court reversed the judgment of the Court of Appeal. The court held that the mediation-related discussions were confidential because they were for the purpose of, in the course of, or pursuant to, a mediation. According to the Court, there was no exception to mediation confidentiality where a client was seeking to use confidential communication as evidence in a legal malpractice suit. Confidentiality was not limited to communications between mediation participants or within the mediation proceedings, and an analogy to the exception from the attorney-client privilege was inapposite. Due process was not implicated.