New California Law Requires Client Consent Prior to Mediation and Could Affect Confidentiality

On January 1, 2019, a new California law will take effect that will require lawyers to make sure their clients understand the implications of California’s legal protections for mediation communications, BEFORE the client agrees to mediation. Note: If the client has already agreed to mediation before seeking counsel then informed consent will be required as soon as possible after engaging counsel.

The new law from our buds in Sacramento will require the attorney to obtain their client’s signature on a separate printed disclosure form confirming the client understands the main code section providing mediation confidentiality, Evidence Code section 1119. The informed consent disclosure will need to be in the preferred language of the client.

Now adding this additional step also affects confidentiality. 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. Thus this new law has faced some overwhelming opposition. A stunning 32 of the 33 affected stakeholder organizations (mediation users, the courts, public agencies, lawyers, and mediators, with millions of hours of direct experience with mediations across all sectors) opposed the initial approach the Commission took. In a rare joint letter of opposition, the organized plaintiffs’ and defense bars joined to explain “Confidentiality promotes candor, which in turn leads to successful mediation…and the use of mediation is critical to successful out of court resolution of disputes.”

But nonetheless, the law will take effect this upcoming year, so get ready to sign another form — hooray!  Even when it comes to how best to enforce the process of the law, people can’t agree on very much and thus you have disputes. When those horrible things affect YOU and YOUR business including landlord/tenant matters, contract issues or even collections, call on the good guy litigator Dean Sperling who will resolve YOUR matter with YOUR best interests in mind!  

More on the case:
New California Law Requires Informed Consent to Mediation