Neutral Corner: Mediation communications in legal malpractice actions

The legal malpractice case of Cassel v. Superior Court of Los Angeles County, 244 P. 3d 1080 (2011), continues to ricochet through the California mediation community and court system, and the issue it raised is now headed to the Legislature. On Aug. 7, 2015, the California Law Revision Commission voted to recommend that the California mediation statute be amended to create an exception when issues of misconduct or malpractice of an attorney involved in a mediation are raised. This initiative, which may result in California adopting the Uniform Mediation Act, has resulted in polarized positions within the California mediation community.

The Cassel case

On Aug. 4, 2004, Michael Cassel, the plaintiff in an action seeking damages for breach of a license agreement, attended a mediation session with his lawyers. The mediation began at 10 a.m. and concluded at midnight with the plaintiff agreeing to accept $1.25 million. The plaintiff subsequently sued his lawyers for legal malpractice, alleging that they employed various coercive tactics, including following him into the bathroom, to keep him at the mediation and to pressure him to accept a settlement in an amount that he and his attorneys had previously agreed was too low. The Supreme Court of California ruled that conversations between Cassel and his attorneys, which occurred prior to the mediation but in preparation therefore, were “mediation communications” within the purview of the California mediation confidentiality rule and should have been excluded from evidence. The Supreme Court of California held the trial court was correct to exclude the evidence of the pre-mediation conferences between Cassel and his counsel in that the conversations were “for the purpose of, in the course of, or pursuant to a mediation,” which was the language of the applicable confidentiality rule. The court in Cassel stated that it was up to the California Legislature to decide if the mediation confidentiality rule should be relaxed.

Commission recommendations

Following much comment and some concern after the Cassel decision, the California Legislature directed the California Law Revision Commission to analyze “the relationships under current law between mediation confidentiality and attorney malpractice and other misconduct.” Beginning in July 2013 and extending through August 2015, the commission conducted extensive research and sought input from interested persons and entities. In a meeting on Aug. 7, 2015, by a divided vote, the commission directed its staff to prepare a recommendation that the mediation confidentiality statutes (Cal. Evid. Code secs.1115-1128) be amended to permit the use of mediation communications to prove or disprove a legal malpractice claim against either an attorney or attorney-mediator. The commission further directed that the new exception utilize an in-camera screening process. The commission’s study presented several approaches and almost 50 different options to address the perceived problem created by the exclusion of the evidence in Cassel. These approaches ranged from no change, to wholesale adoption of the UMA, to specific rule tweaks, such as an 8-hour limit to each day’s mediation session to help prevent coercion.

Mediator reaction

California has long had a large, varied and vocal mediation community. There have been widely divergent reactions to the proposed changes within this community. Ron Kelly, a San Francisco mediator and trainer, wrote in a September 2015 article in Mediate.com that the proposed law would “destroy mediation and swamp [the] overburdened Courts.” Kelly cited the California Law Revision Commission chair’s concern that the California courts would be “devastated” and caseloads of the courts would increase by “fifty percent.” The harm would flow, Kelly and others predict, from reluctance of lawyers to participate in mediation knowing that every mediation statement and document would be subject to discovery and subpoena.

Other California practitioners, such as Jeffrey Kichaven, recognized as a leading figure in ADR both in California and nationally, are of the opinion that the proposed law, or even adoption of the Uniform Mediation Act, could further the use of mediation and result in appropriate and needed professional accountability. In a telephone conversation with the author, Kichaven suggested that if the opponents of the rule would look to the experience of those states that have adopted the UMA, they would find that the predicted calamities have not resulted.

Indiana should consider adopting the UMA

The Indiana ADR Rules merely incorporate by reference Indiana Evidence Rule 408 and add that the entire process is “confidential.” The issue of whether evidence of misconduct or malpractice of a lawyer in a mediation is admissible in a subsequent action is not specifically addressed. The issue would probably be analyzed on the basis of the provision in Rule 408 providing that the rule does not “require exclusion when the evidence is offered for another purpose.” See, i.e., Horner v. Carter, 981 N.E.2d.1210 (Ind. 2013)

The UMA, which has been adopted in 10 states and the District of Columbia and has been introduced in New York, specifically addresses the issues raised by Cassel. The UMA creates a privilege for mediation communications, with certain specific exceptions. One exception is when the communication is:

“sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation.” UMA Section 6(a)(6)

(Another provision of the UMA, Section 6(c), excludes mediators from this section.)

Adoption of the UMA in Indiana would provide clarity and certainty in the scope of confidentiality in mediation and would clarify that such communications could be used in instances such as Cassel, when a subsequent legal malpractice or misconduct action is brought.•

John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. The opinions expressed are those of the author.