On February 23, 2012, Assembly Bill 2025 was introduced in the California legislature. The intent of the bill was to abolish mediation confidentiality  with respect to “…communications between a client and his or her attorney during mediation, in  an  action for legal malpractice or breach of fiduciary duty or both and in a State Bar disciplinary action, if the attorney’s professional negligence or misconduct forms the basis of the client’s allegations against the attorney.

There was much opposition to this bill from various groups and individuals. As a consequence,  the state assembly judiciary  committee’s hearing on it was postponed, and earlier this week, the bill was withdrawn altogether. As a result, for the present, communications between an attorney and his/her client during a mediation remain covered by mediation confidentiality and cannot be introduced in a later malpractice or discipline action to show that the attorney fell below the requisite standard of care or breached his/her duty to a client in some way.

While the withdrawal of this bill may seem like a victory to some and a defeat to others, in reality, it may be neither. The bill was withdrawn so that the issue could be referred to the California Law Revision Commission for further study. One of the quandaries is how to reconcile the aim of this bill- to allow the admission of evidence of malpractice or professional misconduct occurring during a mediation into a subsequent trial or hearing – with the  waiver of  the attorney-client privilege in actions for breach under  California Evidence Code  Section 958.  This reference to the Commission appears in the re-worded bill.

According to the proponents of AB 2025, a real issue exists regarding attorneys breaching their duties during mediation and escaping the consequences under the protection of  mediation confidentiality. The proponents believe such breaches of duty occur during mediation more frequently than we would like to think or admit and so there must be a mechanism to address and remedy them. As this topic is a thorny issue, the California Law Revision Commission will now take it up. But, by doing so, the Commission may not necessarily have the very narrow focus of AB 2025; it may broaden its horizons by looking at all of the confidentiality statutes (and not just the one prohibiting the admissibility of evidence of what occurred during mediation) and create an exception much broader than AB 2025. By the time the Commission finishes, there may be exceptions to confidentiality far more reaching than simply for breaches of duty during mediation. In sum, some believe that this turn of events, in reality, is opening Pandora’s box.

The work of the Commission will probably take quite some time; perhaps a year or two.

by Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com