Reversing a decision of the Court of Appeal, the California Supreme Court has held that under Evidence Code section 1119, “all discussions conducted in preparation for a mediation, as well as all mediation-related communications that take place during the mediation itself, are protected from disclosure. Plainly, such communications include those between a mediation disputant and his or her own counsel, even if these do not occur in the presence of the mediator or other disputants.” The decision is Cassel v. Superior Court, (2011) 51 Cal.4th 113.
The effect of this decision is reflected in the following language from Wimsatt v. Superior Court,(2007) 152 Cal.App.4th 137 1t 150, which was cited with approval by the Supreme Court: “when clients, such as [the malpractice plaintiff in that case], participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel.”
A decision cited at length by the Supreme Court was Benesch v. Green. This blog author’s firm, Sedgwick, Detert, Moran & Arnold LLP, was counsel for the defendant attorney in that action and procured the ruling. The Supreme Court had the following to say regarding the Benesch decision:
A United States District Court case, Benesch v. Green (N.D.Cal.2009) 2009 WL 4885215 (Benesch ), more recent than the Court of Appeal decision in this case, supports our analysis even more closely than does Wimsatt. In Benesch, a mediation disputant sued her attorney, claiming counsel committed malpractice by inducing her, in the mediation, to sign an enforceable “Term Sheet” that failed to meet her aim of ensuring her daughter’s inheritance rights. Defendant attorney sought summary judgment, asserting that the client had no case without introducing evidence protected by the mediation confidentiality statutes, including “the legal advice that [counsel] gave to [the client], and the circumstances in which the Term Sheet was executed.” (Id., at p. *5.)
The district court denied summary judgment, ruling that it was not absolutely clear the mediation confidentiality statutes left the client without evidence sufficient to prove her case. Nonetheless, the court agreed that the multiple California cases construing the mediation confidentiality statutes, including Wimsatt, “generally support Defendant’s position” that mediation-related communications, including those only between client and counsel, are not subject to disclosure, even when this may inhibit a client’s claim that her lawyer committed malpractice. (Benesch, supra, 2009 WL 4885215, *5.)
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