AB 2025: In a post-mediation malpractice lawsuit, should a client be permitted to testify about what his attorney said during the course of the mediation?
Under existing law, nothing said in the course of a mediation is admissible in evidence or subject to discovery in another action or proceeding. This confidentiality applies as well to communications between a client and his attorney. This means, as articulated by the California Supreme Court’s recent decision in Cassel v. Superior Court 51 Cal 4th 113 (2011), that if a client wants to sue his attorney over something that happens during the course of the mediation – claiming, for example, that the attorney misadvised or pressured him – he could not prove his case by testifying about what happened at the mediation. Such testimony would be barred by California Evidence Code Section 1119.
On February 23, 2012, Assembly Bill AB 2025 was introduced in the California State Assembly which would amend the Evidence Code and abrogate the Cassel decision. AB 2025 provides that mediation confidentiality would not apply when a client sues his attorney over something that happens during the mediation. To prove his case, the client would thus be allowed to testify to his communications with his attorney.
For arguments against this proposed legislation, go to CDRC.net. See also the article by Ron Kelley on mediate.com. For an argument in favor, click here (pages 26-29). You can also join the conversation already underway on LinkedIn under Groups, Southern California Mediation Association.
Look for a survey from SCMA on this topic in the very near future.