California has new confidentiality laws for mediation

Governor Jerry Brown recently signed SB 954. While it does not take effect until January 1, 2019, this law requires lawyers to inform clients about confidentiality guidelines regarding mediation. Lawyers will now need to provide and get a written confirmation that they have briefed the client and the client understands the consequences. This protects attorneys from legal malpractice accusations by a client who is unhappy with the outcome.

The lawyer drafts a disclosure and has it signed by the client before the mediation process begins. It will feature a sample disclosure. There should also be language about the mediation process being a safe harbor for speaking the truth.

Important takeaways for this new law

This bill evolved since the initial draft. The highlights of the new law include:

• Issues and matters discussed in strategy sessions and during mediation are not admissible in malpractice suits.
• The discipline proceedings can use any disclosure form that does not include details of the proposed mediation or any admission made during mediation.
• The attorney need not provide the contract to the client for protection by the law.
• The law will also not apply to class or representative actions.

Good for the clients

While this new law does protect attorney from malpractice lawsuits, it also provides information to clients about the mediation process. This can help them to determine if it is the right course of action, and outline their rights during the process. Ideally, clients’ increased understanding of the mediation process and possible outcomes will lead to higher level of satisfaction.