Governor signs Wieckowski mediation bill

September 11, 2018

SACRAMENTO – State Senator Bob Wieckowski’s (D-Fremont) bill requiring attorneys to inform their clients of all confidentiality restrictions related to mediation and to obtain written disclosure that the clients understand them was signed today by Governor Jerry Brown.

“Senate Bill 954 provides more transparency and a better understanding of the potential ramifications of the mediation process,” said Sen. Wieckowski, a member of the Senate Judiciary Committee. “Confidentiality in mediation allows for more candid discussions by participants, but consumers need to know it also means if problems arise those discussions cannot be used against their attorney in a malpractice claim. This bill is an improvement to the current system and will allow consumers to make better-informed decisions regarding their legal matters.”

In mediation a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. With few exceptions, negotiations, documentation and settlement talks are confidential and not subject to subsequent legal action.

The Legislature in 2012 directed the California Law Revision Commission (CLRC) to examine the relationship between mediation confidentiality and attorney malpractice. The CLRC undertook a five-year study and released its recommendation late last year. It recommended permitting 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.

But the CLRC’s recommendation was strongly opposed by a wide range of stakeholders, including mediators, attorneys and judges.  Given the political opposition to the recommendation, Sen. Wieckowski authored SB 954 to take a more modest approach by requiring that consumers at least be provided with a disclosure explaining the confidentiality restrictions in mediation.  The disclosure must be provided to clients in a meaningful and timely fashion to enable clients to decide whether or not to proceed with mediation. The disclosure must be in the client’s preferred language and on a separate, single page.

Supporters said SB 954 will help consumers be aware of the stringent confidentiality requirements and their potential implications.

The bill was supported by the Conference of California Bar Associations, California Dispute Resolution Council, Los Angeles County Bar Association, Mediating Family Law Attorneys, Collaborative Family Law Group of San Diego and the Judicial Council.

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