Between Scylla and Charybids: The Mediation Privilege and Legal Malpractice Claims

by Wendel, Rosen, Black & Dean LLP

I attended a mediation earlier this month in a real estate case. I won’t say more through because . . . well . . . it’s confidential.

The confidentiality of mediations and of settlement discussions generally – the idea being that parties are more likely to resolve their differences if they can speak honestly and frankly with one another without fear that their words or actions can later be used against them in trial – has long been a hallmark of California law.

But that may not be the case for long. In 2012, the California State Legislature directed the California Law Review Commission (“Commission”), the state agency responsible for recommending reforms to California law, to review and make recommendations regarding the relationship between California’s laws which make mediation discussions confidential and attorney malpractice.

The Rub

So, here’s the rub between mediation confidentiality and attorney malpractice: Under California law, all communications, negotiations, or settlement discussions by and between participants in a mediation are confidential, are not subject to discovery and are inadmissible at trial. However, the mediation privilege has also been used as a shield with some success by attorneys in legal malpractice actions in which former clients have claimed that their attorney engaged in malpractice by improperly advising (or, as is more often the case, failing to properly advise) the client during mediation.

It’s like the Greek mythology of Scylla and Charybdis, with the Commission being asked to navigate the treacherous waters between preserving the mediation privilege on one hand while preventing its use as a shield in legal malpractice actions on the other.

Whether the Commission can address the few bad apples in the legal profession while protecting the rest of us and our clients is to be seen.

Navigating Through Uncharted Waters

In July of this year, following two years of study, the Commission announced that it had completed its background investigation and would start the process of preparing a tentative recommendation. Among the potential courses charted by the Commission, from direct to (really) indirect, included:

  1. Creating an exception to the rule: Creating an exception to the mediation privilege for “attorney malpractice and other misconduct.”
  2. Modifying the scope of the rule: Modifying the mediation privilege to allow it to be waived; requiring an attorney to waive the mediation privilege in the event a legal malpractice or State Bar disciplinary action is brought against him or her; or allowing a party to seek disclosure of a confidential mediation communication through a special showing that the need for disclosure outweighs the interest of maintaining confidentiality.
  3. Retaining the rule but requiring certain disclosures: Requiring that an attorney disclose to their client that anything said or done during a mediation is confidential; requiring attorneys to provide a statutory disclosure form to clients before mediation; requiring mediators to provide participants with a statutory disclosure form; or requiring parties to view a video on mediation confidentiality before the start of a mediation.
  4. Other potential recommendations: Limiting mediations to no more than 8 hours per day; modifying the burden of proof in cases involving legal malpractice in the context of mediation from negligent misconduct to willful misconduct; allowing participants to bring a support person to mediation and enacting a post-mediation “cooling-off period”; developing a mediator regulation system and requiring mediation to take place within 30 days of when a lawsuit is filed.

For a complete list of potential recommendations see the Commission’s Memorandum 2015-33.

The Course Charted by the Commission

At its August 7, 2015 meeting, the Commission voted to chart a direct course and recommend an exception to the mediation privilege which would:

  1. Create an exception for claims against attorney-representatives and attorney-mediators: Create an exception to the mediation privilege for mediation communications, whether made during or in connection with a mediation, in cases involving claims of legal malpractice or professional misconduct against an attorney serving as a representative of a party or an attorney serving as a mediator, but not against a retired judge serving as a mediator.
  2. Use of in camera preliminary hearings: Adopt a procedure for use of an “in camera” (i.e., private) preliminary hearing for purposes of determining the type and extent of alleged malpractice or misconduct, which could be declined in the discretion of the judge hearing the case. However, what is unclear, is if a judge declines an in camera hearing whether it means that all otherwise confidential information would be discoverable and admissible or whether it means that no confidential information would be discoverable or admissible (this is a huge difference!).
  3. Other features: Not surprisingly, the exception would be recommended as an amendment to the Evidence Code which includes the current mediation privilege. In addition, while the exception could be used to pursue legal malpractice or professional misconduct claims, it could not be used to unwind or otherwise invalidate a settlement reached during mediation. And, finally, unlike the American Bar Association’s Uniform Mediation Act, which restricts the use of mediation communications in malpractice and misconduct cases to evidence used solely to prove or defend against such claims, the Commission would more broadly allow all evidence relevant to the alleged malpractice or misconduct.


While the final recommendation adopted by the Commission will almost certainly go through some fine tuning, some believe that the Commission’s chosen course already goes too far. For myself, I’ll just note that there are a number of unanswered questions including:

  1. How far will the exception apply? To pre-mediation communications? To post-mediation comminications?
  2. Can mediators be subpoenaed to testify or produce documents in support of or against an attorney who is alleged to have engaged in legal malpractice or professional misconduct?
  3. Can other participants in a mediation be subpoenaed to testify or produce documents in actions alleging malpractice or misconduct (I am assuming here that attorney-client communications between a participant and their attorney-representative would continue to be privileged)?
  4. If mediation communications are determined or deemed to be discoverable and admissible, whether in an in camera hearing, or because a judge declines to hold an in-camera hearing as discussed above, are attorney-client communications made outside of mediation inadmissible to rebut those mediation communications?
  5. Can an opposing party in a mediation use mediation communications discovered or admitted in an underlying malpractice or misconduct case in a subsequent action against the party who brought or initiated the malpractice or misconduct claim?
  6. What is the rationale in permitting the use of mediation communications in malpractice or misconduct cases against an attorney acting a mediator but not against a retired judge acting as a mediator? How about an individual who is neither an attorney nor a retired judge but who acts as a mediator?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wendel, Rosen, Black & Dean LLP | Attorney Advertising

Written by:

Wendel, Rosen, Black & Dean LLP

Wendel, Rosen, Black & Dean LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.