Suppose that during mediation a defendant offers plaintiff a million dollar settlement. The plaintiff ’s lawyer, who thinks the money is a fraction of the case’s value, advises the client not to accept the million, and instead to go to trial. Then suppose that the case goes to trial and the plaintiff loses. The plaintiff decides to sue his lawyer for malpractice for advising him to turn down the million dollar settlement. The lawyer argues that the case cannot go forward because any statement made at a mediation—such as “don’t take the million, we’ll do better at trial,” is inadmissible in court. Without this evidence the malpractice case cannot go forward. Does the law of mediation confidentially immunize the lawyer from malpractice?

The law of mediation confidentiality, as codified in the California Evidence Code1, allows participants in a mediation to freely discuss and exchange settlement proposals, orally or in writing, without fear that any of these conversations or writings could be used in a later court hearing. In statutory language, all “statements” made during mediation, or pursuant to mediation, are inadmissible in a later proceeding. But do the rules that apply to opposing parties also apply to a conversation between a lawyer and his client such as the one described above. Two court of appeal decisions, Cassel v. Superior Court2 and Porter v. Wyner,3 held that they do not; however, the California Supreme Court recently reversed the Cassel court of appeal decision and held that all statements or writings which occur during or pursuant to a mediation are confidential, and are inadmissible in any future court action, including a malpractice action.4 The Court has thus decided the thorny issue of whether the rules of mediation confidentiality also apply to conversations between a party and his/her own counsel, holding that a statement made by counsel to a client during the course of mediation— which could otherwise form the basis of a claim for legal malpractice—is protected by mediation confidentiality and is inadmissible.