Legal Ethics in Mediation
Having taught ethics programs to various bars and environmental organizations over the years, this is a good time to remind lawyers that they need to think about an attorney’s professional ethical obligations when representing a client in mediation, which has its own set of issues that need to be considered. Although this discussion focuses on California rules, and the applicability of specific provisions of the California’s Evidence Code, the foundation of those considerations is broadly applicable to most mediations (but there are some areas of law, e.g., family law, that may have their own distinct set of rules and protocols that should be reviewed separately).
To start with, all rules of professional responsibility otherwise applicable to attorney conduct similarly apply to an attorney’s representation in the course of mediation. For example, the attorney-client relationship is unaffected, a lawyer must continue to zealously advocate for their client, albeit in the case of mediation seeking an acceptable resolution for the client, and providing an honest assessment of the matter to enable the client to make an informed decision.
A mediation, however, is not the same as a judicial tribunal. Therefore, rather than applying parameters on what a lawyer may say to a court or do in a trial or in filings, statements in the course of the mediation, and to the mediator, would be governed by rules that address statements made by counsel to third parties.
A foundational principle of a mediation is that all communications made in the course of or during a pre-mediation consultation with the mediator, except as noted below, remain confidential, and cannot be compelled in the course of the litigation. This principle is strictly construed, even if it flies in the face of the equities resulting from maintaining confidentiality. This is necessary to enable the parties and the mediator to speak freely and explore all possible avenues of resolution. As I’ve written about previously, this would also extend to parties’ experts that are participating in the mediation, whose participation in many instances can further the opportunities for settlement. https://www.jabmediation.com/blog/mediating-expert-intensive-disputes.
Keep in mind, however, that evidence otherwise discoverable outside of the mediation is not rendered inadmissible or protected simply because it was brought up or used as part of the mediation. Rather, it is writings, statements, etc., prepared for the mediation that are protected under mediation confidentiality. One caveat to note, relevant to environmental disputes, is that in some instances it has been held that sample results themselves, prepared as part of the mediation, may not necessarily be considered protected writings that would be inadmissible in litigation. On the other hand, just because something that would otherwise be inadmissible in litigation is used in the mediation does not make it admissible. Note that there are some exceptions to non-disclosure, such as where the parties agree that a communication or writing can be disclosed, or where it relates to attorney misconduct.
The bottom line is that a lawyer cannot use the mediation as a shield to protect information that is otherwise admissible and discoverable.
This strict mediation confidentiality even extends to reports to the court, and except where the parties otherwise agree, the court cannot consider the mediation or any aspects of the mediation. For example, if I was asked by a court to mediate a case in which the court required me to report whether the parties were acting in good faith in the mediation, I would not take on that assignment. Such a query by the court would not be permissible. On the other hand, where I have been appointed and the court preliminarily asked for my assessment as to whether I believed the matter was even ripe for mediation, that did not tread on confidentiality restrictions.
What about the confidentiality of a settlement agreement itself agreed to through mediation? In most cases, that settlement agreement will be admissible, so long as any of the following apply: The agreement itself provides that it is admissible, the agreement provides that it is enforceable, all parties agree to its admissibility, or the agreement is used to show fraud, distress, or illegality relevant to an issue in the dispute. Oral agreements may also be admissible, but it is always recommended to enter into a written agreement.
It is important to keep in mind that an attorney may not refer to the mediation in a subsequent trial. To do so would constitute an “irregularity” in the proceedings, and, if the reference materially affects substantial rights of the party seeking relief, it could result in the court vacating the verdict and ordering a new trial.
Lastly, but no less important, the mediator will require that the parties and agents participating in a mediation sign a confidentiality agreement that sets forth the terms of the confidentiality of the mediation. Beyond that, Evidence Code § 1129 requires that attorneys, before having their client agree to mediation, provide to their client a disclosure of confidentiality that sets forth the restrictions in the Code, and have the client acknowledge in writing they have read and understood those restrictions. The Code provides a “safe harbor” disclosure form that can be used, which I've included below.
Joshua Bloom Dispute Resolution
Mediation Disclosure Notification and Acknowledgment
To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:
• All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
• Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
• A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
• A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.
This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.
I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
[Name of Client] [Date signed]
[Name of Attorney] [Date signed]