The New Year Brings New Requirements for California Lawyers Representing Clients in Mediation

Effective January 1, 2019, California Senate Bill No. 954 will require California lawyers representing clients in connection with mediation to (1) provide written disclosures to their clients about confidentiality restrictions applicable to statements made during or in connection with mediation and (2) obtain written acknowledgments from clients indicating that they have read and understand the confidentiality restrictions before theyagree to participate in mediation. If the lawyer is retained by the client after the client has already agreed to participate in mediation, the lawyer must provide the disclosure to the client as soon as reasonably possible after being retained. The disclosure requirement does not apply to lawyers representing clients in class or representative actions.

California follows the generally accepted position that communications in connection with or at mediations are confidential and are generally inadmissible as evidence. This bill amends California Evidence Code Section 1122, relating to mediation confidentiality, and adds Section 1129. Evidence Code Section 1129 provides that the lawyer’s disclosure must:

• Be in writing in a stand-alone document (i.e., not attached to any other document);
  
  
• Be in the client’s preferred language;
  
  
• Be in at least 12-point font;
  
  
• Be on a single page;
  
  
• Include the names of the lawyer and the client;
  
  
• Be signed and dated by the lawyer; and
  
  
• Be signed and dated by the client.

Evidence Code Section 1129(d) also provides form language that lawyers can use for their disclosure and acknowledgement forms that is “deemed to comply” with the applicable rules. (View a sample disclosure and acknowledgement form.)

While failure to obtain a compliant acknowledgment may subject a California lawyer to discipline, it will not provide a basis to overturn an otherwise valid mediated agreement. California Evidence Code Section 1122(a)(3) has been revised to generally allow a communication or document related to a lawyer's compliance with the disclosure requirement to be admissible in an attorney disciplinary proceeding.

Because 1129(d) is incorporated into California's Evidence Code, these requirements apply wherever California courts have jurisdiction, regardless of what jurisdictions the lawyers involved are from. While it is unclear how these requirements apply to lawyers outside of California, any lawyer potentially subject to discipline in California should be mindful of these requirements.