Mediation Confidentiality Bars Malpractice Claim but for How Long?

The California Court of Appeal yesterday upheld application of the mediation confidentiality statutes to bar a malpractice action which was based on the attorneys’ actions during mediation. John Amis vs. Greenberg Traurig LLP, et al. (3/18/15) Court of Appeal, Second Appellate District, No. B248447. Inferences about the attorneys’ conduct during mediation were also determined to be unusable in an attempt to circumvent the privilege.

Plaintiff, John Amis, filed an action against his former attorneys, Greenberg Traurig, alleging they were negligent by “causing” him to execute a settlement agreement during a two-day mediation which converted a corporate obligation into a personal obligation. The causes of action included breach of fiduciary duty, malpractice and breach of a conflict waiver, in support of which Amis alleged that the attorneys failed to advise him of the risk involved in entering into the settlement agreement, “drafted, structured and caused it to be executed” during mediation and breached a conflict waiver by failing to negotiate a settlement that provided him with financial security. During plaintiff’s deposition he admitted that all of the advice he had received in connection with the settlement agreement occurred during mediation and that all the damages incurred were from his execution of that agreement during mediation. Greenberg Traurig filed a motion for summary judgment based upon plaintiff’s deposition admissions and argued that since the mediation confidentiality statutes barred each side from presenting testimony as to what occurred during mediation, the plaintiff could not establish the elements of his claims and they could not defend against those allegations. The trial court agreed with the defense, granting summary judgment.

In affirming the trial court’s dismissal, the Court recognized as it has in many recent decisions, that this result may hinder a plaintiff’s ability to prove his/her malpractice claim against their former attorney but the statutes provide for an unqualified confidentiality, and the Supreme Court has prohibited judicially crafted exceptions, citing Cassel vs. Superior Court (2011) 51 Cal. 4th 113, 117 and Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 152.

WATCH: The California Law Revision Commission is currently analyzing the relationship between the mediation confidentiality statutes and attorney malpractice claims with the possibility brewing that a statutory exception for these types of claims could be created.

This document is intended to provide you with information about professional liability law related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.

March 19, 2015