There are new rules for parties going through mediation starting in 2019. As set forth succinctly here (https://blog.ceb.com/2018/10/15/lawyers-must-now-inform-clients-about-mediation-confidentiality-in-writing/#more-21682), attorneys must now have clients sign a separate form acknowledging that all aspects of mediation are confidential and thus inadmissible in court at a later date. This will be in the new Evidence Code Section 1129.
Although the confidentiality of mediation is not changing, this extra step of having clients acknowledge the fact in one document is new. As a mediator, I already have clients sign a fee agreement where this fact is clearly stated, but I will now have clients sign a second, separate document stating the following:
I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.
NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
If you are not sure whether mediation is a good option for you, feel free to call for a free consultation at our Dublin office: (925) 452-8219.
