Senate passes Wieckowski bill to require mediation consumers to be informed about confidentiality restrictions

May 17, 2018

 

SACRAMENTO – The California State Senate passed a bill today by State Senator Bob Wieckowski (D-Fremont) to require attorneys to inform their clients of all the confidentiality restrictions related to mediation and obtain written disclosure that the clients understand the process. SB 954 now goes to the Assembly for consideration.

“Confidentiality is an important aspect of mediation in assuring participants that they can be entirely candid,” said Senator Wieckowski, a member of the Senate Judiciary Committee.  “But the benefits of absolute confidentiality can also come with harsh consequences where mediation consumers wronged by their attorney are barred from pursuing any malpractice claims. By providing mediation consumers a better understanding of mediation confidentiality, SB 954 allows consumers to make the best informed decision for themselves about participating in mediation.”

Mediation is a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. With few exceptions, all communications, such as prepared documentation, negotiations and settlement discussions are entirely confidential and cannot be used in a subsequent legal action.

“California has the most stringent mediation confidentiality requirements in the nation, and SB 954 will help ensure that mediation consumers are aware of those requirements and acknowledge understanding their potential implications,” said Larry Doyle, representative of the Conference of California Bar Associations.

The Legislature in 2012 directed the California Law Revision Commission (CLRC) to study the relationship between attorney malpractice and mediation confidentiality. The commission undertook a four-year study and released its final recommendation in December 2017. It recommended a statutory change to permit disclosure of otherwise confidential communications in a disciplinary proceeding of the State Bar or a cause of action for damages based upon a claim of malpractice if the evidence is relevant to prove or disprove an allegation that a lawyer breached a professional duty when representing a client.     

The CLRC’s recommendation is strongly opposed by numerous stakeholders, including attorneys, professional mediators and judges. Given such wide-ranging opposition to the CLRC’s recommendation, Sen. Wieckowski authored SB 954 to increase consumers’ understanding of the mediation process.

Senator Wieckowski represents the 10th District, which includes southern Alameda County and Santa Clara County.