Supreme Court of California Justia
Citation 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437

Cassel v. Super. Ct.

Filed 1/13/11

IN THE SUPREME COURT OF CALIFORNIA

MICHAEL CASSEL,
Petitioner,
S178914
v.
Ct.App. 2/7 B215215
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Respondent;
Super. Ct. No. LC070478
WASSERMAN, COMDEN,
CASSELMAN & PEARSON, L.L.P.,
et al.,
Real Parties in Interest.
____________________________________)

In order to encourage the candor necessary to a successful mediation, the
Legislature has broadly provided for the confidentiality of things spoken or written
in connection with a mediation proceeding. With specified statutory exceptions,
neither “evidence of anything said,” nor any “writing,” is discoverable or
admissible “in any arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which . . . testimony can be compelled to be given,” if
the statement was made, or the writing was prepared, “for the purpose of, in the
course of, or pursuant to, a mediation . . . .” (Evid. Code, § 1119, subds. (a), (b).)1

1
All further unlabeled statutory references are to the Evidence Code.
1

“All communications, negotiations, or settlement discussions by and between
participants in the course of a mediation . . . shall remain confidential.” (Id.,
subd. (c).) We have repeatedly said that these confidentiality provisions are clear
and absolute. Except in rare circumstances, they must be strictly applied and do
not permit judicially crafted exceptions or limitations, even where competing
public policies may be affected. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 580
(Simmons); Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194 (Fair); Rojas v. Superior
Court (2004) 33 Cal.4th 407, 415-416 (Rojas); Foxgate Homeowners’ Assn. v.
Bramalea California, Inc. (2001) 26 Cal.4th 1, 13-14, 17 (Foxgate).)
The issue here is the effect of the mediation confidentiality statutes on
private discussions between a mediating client and attorneys who represented him
in the mediation. Petitioner Michael Cassel agreed in mediation to the settlement
of business litigation to which he was a party. He then sued his attorneys for
malpractice, breach of fiduciary duty, fraud, and breach of contract. His complaint
alleged that by bad advice, deception, and coercion, the attorneys, who had a
conflict of interest, induced him to settle for a lower amount than he had told them
he would accept, and for less than the case was worth.
Prior to trial, the defendant attorneys moved, under the statutes governing
mediation confidentiality, to exclude all evidence of private attorney-client
discussions immediately preceding, and during, the mediation concerning
mediation settlement strategies and defendants‟ efforts to persuade petitioner to
reach a settlement in the mediation. The trial court granted the motion, but the
Court of Appeal vacated the trial court‟s order.
The appellate court majority reasoned that the mediation confidentiality
statutes are intended to prevent the damaging use against a mediation disputant of
tactics employed, positions taken, or confidences exchanged in the mediation, not
to protect attorneys from the malpractice claims of their own clients. Thus, the
2

majority concluded, when a mediation disputant sues his own counsel for
malpractice in connection with the mediation, the attorneys — already freed, by
reason of the malpractice suit, from the attorney-client privilege — cannot use
mediation confidentiality as a shield to exclude damaging evidence of their own
entirely private conversations with the client. The dissenting justice urged that the
majority had crafted an unwarranted judicial exception to the clear and absolute
provisions of the mediation confidentiality statutes.
Though we understand the policy concerns advanced by the Court of
Appeal majority, the plain language of the statutes compels us to agree with the
dissent. As we will explain, the result reached by the majority below contravenes
the Legislature‟s explicit command that, unless the confidentiality of a particular
communication is expressly waived, under statutory procedures, by all mediation
“participants,” or at least by all those “participants” by or for whom it was
prepared (§ 1122, subd. (a)(1), (2)), things said or written “for the purpose of” and
“pursuant to” a mediation shall be inadmissible in “any . . . civil action.” (§ 1119,
subds. (a), (b).) As the statutes make clear, confidentiality, unless so waived,
extends beyond utterances or writings “in the course of” a mediation (ibid.), and
thus is not confined to communications that occur between mediation disputants
during the mediation proceeding itself.
We must apply the plain terms of the mediation confidentiality statutes to
the facts of this case unless such a result would violate due process, or would lead
to absurd results that clearly undermine the statutory purpose. No situation that
extreme arises here. Hence, the statutes‟ terms must govern, even though they
may compromise petitioner‟s ability to prove his claim of legal malpractice. (See
Foxgate, supra, 26 Cal.4th 1, 17; Wimsatt v. Superior Court (2007)
152 Cal.App.4th 137, 163 (Wimsatt).) Accordingly, we will reverse the judgment
of the Court of Appeal.
3

FACTS AND PROCEDURAL BACKGROUND
On February 3, 2005, petitioner filed a complaint against defendants and
real parties in interest Wasserman, Comden, Casselman & Pearson, L.L.P., a law
firm (WCCP), and certain of its members, including attorneys Steve Wasserman
and David Casselman (hereafter collectively real parties). (Michael Cassel v.
Wasserman, Comden, Casselman & Pearson, L.L.P., et al., Super. Ct. L.A.
County, 2005, No. LC070478.) The complaint alleged that real parties,
petitioner‟s retained attorneys, had breached their professional, fiduciary, and
contractual duties while representing petitioner in a third party dispute over rights
to the Von Dutch clothing label.
The complaint asserted the following: In 1996, petitioner acquired a
“global master license” (GML) to use the Von Dutch label, and he founded a
company, Von Dutch Originals, L.L.C. (VDO), to sell clothing under that name.
In 2002, WCCP began representing petitioner in a dispute over ownership of
VDO. Petitioner lost an arbitration resolving that dispute, but the rights to the
GML were not determined. Thereafter, petitioner did business in accordance with
WCCP‟s advice that the GML still entitled him to market clothing under the Von
Dutch label. These activities caused VDO to sue petitioner for trademark
infringement (the VDO suit). WCCP did not inform petitioner that, in connection
with the VDO suit, VDO sought a preliminary injunction against his use of the
Von Dutch label. When WCCP failed to oppose the injunction request, it was
granted.
The complaint continued: Repeatedly assured by WCCP that the VDO
injunction applied only within the United States, petitioner struck a deal to market
Von Dutch clothing in Asia. Around the same time, Steve Wasserman, a silent
partner in his son‟s online sales business, persuaded petitioner to provide genuine
Von Dutch hats for sale through the son‟s business. Petitioner later learned this
4

business was also selling counterfeit Von Dutch goods. Citing both the Asian
agreement and the online sales as violations of the VDO injunction, VDO sought a
finding of contempt against petitioner. In discovery relating to the VDO suit and
the contempt motion, VDO deposed Steve Wasserman about the online sales of
counterfeit Von Dutch merchandise. Wasserman thus assumed the conflicting
roles of counsel and witness in the same case.
Further, the complaint asserted: A pretrial mediation of the VDO suit
began at 10:00 a.m. on August 4, 2004. Petitioner attended the mediation,
accompanied by his assistant, Michael Paradise, and by WCCP lawyers Steve
Wasserman, David Casselman, and Thomas Speiss. Petitioner and his attorneys
had previously agreed he would take no less than $2 million to resolve the VDO
suit by assigning his GML rights to VDO. However, after hours of mediation
negotiations, petitioner was finally told VDO would pay no more than $1.25
million. Though he felt increasingly tired, hungry, and ill, his attorneys insisted he
remain until the mediation was concluded, and they pressed him to accept the
offer, telling him he was “greedy” to insist on more. At one point, petitioner left
to eat, rest, and consult with his family, but Speiss called and told petitioner he had
to come back. Upon his return, his lawyers continued to harass and coerce him to
accept a $1.25 million settlement. They threatened to abandon him at the
imminently pending trial, misrepresented certain significant terms of the proposed
settlement, and falsely assured him they could and would negotiate a side deal that
would recoup deficits in the VDO settlement itself. They also falsely said they
would waive or discount a large portion of his $188,000 legal bill if he accepted
VDO‟s offer. They even insisted on accompanying him to the bathroom, where
they continued to “hammer” him to settle. Finally, at midnight, after 14 hours of
mediation, when he was exhausted and unable to think clearly, the attorneys
presented a written draft settlement agreement and evaded his questions about its
5

complicated terms. Seeing no way to find new counsel before trial, and believing
he had no other choice, he signed the agreement.
In his May 2007 deposition, petitioner testified about meetings with his
attorneys immediately preceding the mediation, at which mediation strategy was
discussed, and about conversations with his lawyers, outside the presence of the
other mediation participants, during the mediation session itself. Petitioner‟s
deposition testimony was consistent with the complaint‟s claims that his attorneys
employed various tactics to keep him at the mediation and to pressure him to
accept VDO‟s proffered settlement for an amount he and the attorneys had
previously agreed was too low.
Thereafter, real parties moved in limine under the mediation confidentiality
statutes to exclude all evidence of communications between petitioner and his
attorneys that were related to the mediation, including matters discussed at the
premediation meetings and the private communications among petitioner,
Paradise, and the WCCP lawyers while the mediation was under way. A hearing
on the motion took place on April 1 and 2, 2009. The trial court examined
petitioner‟s deposition in detail and heard further testimony from David
Casselman.
At length, the court ruled that, in addition to information about the conduct
of the mediation session itself, the following evidence was protected by the
mediation confidentiality statutes and would not be admissible: (1) discussions
between petitioner and WCCP attorneys on April 2, 2004, concerning plans and
preparations for the mediation, mediation strategy, and amounts petitioner might
be offered, and would accept, in settlement at the mediation; (2) similar
discussions between petitioner and WCCP attorneys on April 3, 2004; (3) all
private communications among petitioner, Paradise, and WCCP attorneys on
April 4, 2004, during the mediation, concerning (a) the progress of the session,
6

(b) settlement offers made, (c) petitioner‟s departure from the mediation over the
objection of WCCP attorneys and their efforts to secure his return,
(d) recommendations by WCCP lawyers that petitioner accept VDO‟s $1.25
million offer, (e) their accusations that he was “greedy” for considering $5 million
as an appropriate amount, (f) who would try the case if petitioner did not settle the
VDO suit, (g) a possible deal, if petitioner settled, to acquire an interest in VDO
for him through the pending divorce of VDO‟s owner, and (h) WCCP‟s
willingness to reduce its fees if petitioner settled the suit. The court also ruled
inadmissible, as communicative conduct, the act of a WCCP attorney in
accompanying petitioner to the bathroom during the mediation.
Petitioner sought mandate. The Court of Appeal issued an order to show
cause why the trial court‟s order should not be vacated. After real parties filed a
return to the petition, and petitioner filed a reply, the Court of Appeal granted
mandamus relief.
The majority reasoned as follows: The mediation confidentiality statutes
do not extend to communications between a mediation participant and his or her
own attorneys outside the presence of other participants in the mediation. The
purpose of mediation confidentiality is to allow the disputing parties in a
mediation to engage in candid discussions with each other about their respective
positions, and the strengths and weaknesses of their respective cases, without fear
that the matters thereby disclosed will later be used against them. This protection
was not intended to prevent a client from proving, through private
communications outside the presence of all other mediation participants, a case of
legal malpractice against the client‟s own lawyers. Moreover, a mediation
disputant and the disputant‟s attorneys are a single mediation “participant” for
purposes of the mediation confidentiality statutes. Thus, an attorney cannot block
the client‟s disclosure of private attorney-client communications by refusing, as a
7

separate “participant,” to waive any mediation confidentiality that might otherwise
apply. (See § 1122, subd. (a)(2).) Were this not so, the mediation confidentiality
statutes would unfairly hamper a malpractice action by overriding the waiver of
the attorney-client privilege that occurs by operation of law when a client sues
lawyers for malpractice. (See § 958.)
In dissent, Presiding Justice Perluss argued that the majority had crafted a
forbidden judicial exception to the clear requirements of mediation confidentiality.
The dissent reasoned as follows: By their plain terms, subdivisions (a) and (b) of
section 1119 do not simply protect oral or written communications “in the course
of” mediation — i.e., those made to the mediator, to other mediation disputants, or
to persons participating in the mediation on behalf of such other disputants.
Instead, the statutes also include within their protection communications made
“for the purpose of” mediation. Thus, even unilateral mediation-related
discussions between a disputant and the disputant‟s own attorneys are confidential.
Moreover, unless all mediation participants waive confidentiality, the protection
applies even if the communications do not reveal anything about the content of the
mediation proceedings themselves. The latter conclusion flows from section 1122,
subdivision (a)(2), which allows fewer than all participants in the mediation to
waive, by an express writing or recorded oral statement, the confidentiality of an
oral or written communication prepared solely for their benefit, but only if the
communication “does not disclose anything said or done . . . in the course of the
mediation.” Applying the mediation confidentiality statutes in accordance with
their plain meaning to protect private mediation-related discussions between a
mediation disputant and the disputant‟s attorneys may indeed hinder the client‟s
ability to prove a legal malpractice claim against the lawyers. However, it is for
the Legislature, not the courts, to balance the competing policy concerns.
We granted review.
8

DISCUSSION2
As below, real parties urge that under the plain language of the mediation
confidentiality statutes, their mediation-related discussions with petitioner are
inadmissible in his malpractice action against them, even if those discussions
occurred in private, away from any other mediation participant. Petitioner
counters that the mediation confidentiality statutes do not protect such private
attorney-client communications — even if they occurred in connection with a
mediation — against the client‟s claims that the attorneys committed legal
malpractice . As we will explain, we agree with real parties.3
Pursuant to recommendations of the California Law Revision Commission,
the Legislature adopted the current version of the mediation confidentiality
statutes in 1997. (Simmons, supra, 44 Cal.4th 570, 578.) The statutory purpose is
to encourage the use of mediation by promoting “ „ “a candid and informal
exchange regarding events in the past . . . . This frank exchange is achieved only

2
John and Deborah Blair Porter have submitted an amicus curiae brief on
behalf of petitioner. The Association of Southern California Defense Counsel has
submitted an amicus curiae brief on behalf of real parties.

3
As the Court of Appeal majority declared, “The question presented is
whether, as a matter of law, mediation confidentiality requires exclusion of
conversations and conduct solely between a client, [petitioner], and his attorneys,
[WCCP], on August 2, 3, and 4, 2004[,] during meetings in which they were the
sole participants and which were held outside the presence of any opposing party
or [the] mediator.” (Italics added.) Thus, we need not, and do not, review the trial
court‟s factual determinations that the communications it excluded from discovery
and evidence were mediation related, and thus within the purview of the
mediation confidentiality statutes. As the Court of Appeal dissent pointed out,
petitioner “does not argue . . . that the trial court abused its discretion in
concluding, after carefully reviewing each of the statements at issue here, that they
were materially related to the mediation . . . , and that issue is not properly before
us.” We frame our discussion accordingly.
9

if the participants know that what is said in the mediation will not be used to their
detriment through later court proceedings and other adjudicatory processes.”
[Citations.]‟ (Foxgate[, supra,] 26 Cal.4th 1, 14 . . . .)” (Simmons, supra, at p.
578.)
Section 1119 governs the general admissibility of oral and written
communications generated during the mediation process. Subdivision (a) provides
in pertinent part that “[n]o evidence of anything said or any admission made for
the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or
subject to discovery, and disclosure of the evidence shall not be compelled, in any
. . . civil action . . . .” (Italics added.) Subdivision (b) similarly bars discovery or
admission in evidence of any “writing . . . prepared for the purpose of, in the
course of, or pursuant to, a mediation . . . .” Subdivision (c) of section 1119
further provides that “[a]ll communications, negotiations, or settlement
discussions by and between participants in the course of a mediation . . . shall
remain confidential.” (Italics added.) Exceptions are made for oral or written
settlement agreements reached in mediation if the statutory requirements for
disclosure are met. (§§ 1118, 1123, 1124; see Simmons, supra, 44 Cal.4th 570,
579.)
Under section 1122, “participants” in the mediation may, by the means set
forth in the statute, waive, at least in part, the confidentiality of otherwise
protected mediation-related communications. Subdivision (a)(1) of section 1122
provides that all “who . . . participate” in a mediation may “expressly agree in
writing,” or orally if statutory requirements are met, “to disclosure of [a]
communication, document, or writing.” Subdivision (a)(2) provides that if a
“communication, document, or writing was prepared by or on behalf of fewer than
all of the mediation participants, those participants [may] expressly agree in
writing,” or orally if statutory requirements are met, to disclosure of the
10

communication, document, or writing, so long as “the communication, document,
or writing does not disclose anything said or done . . . in the course of the
mediation.” (Italics added.)
As noted above, the purpose of these provisions is to encourage the
mediation of disputes by eliminating a concern that things said or written in
connection with such a proceeding will later be used against a participant.
“Toward that end, „the statutory scheme . . . unqualifiedly bars disclosure of
communications made during mediation absent an express statutory exception.‟ ”
(Fair, supra, 40 Cal.4th 189, 194, quoting Foxgate, supra, 26 Cal.4th 1, 15.)
Judicial construction, and judicially crafted exceptions, are permitted only where
due process is implicated, or where literal construction would produce absurd
results, thus clearly violating the Legislature‟s presumed intent. Otherwise, the
mediation confidentiality statutes must be applied in strict accordance with their
plain terms. Where competing policy concerns are present, it is for the Legislature
to resolve them. (Simmons, supra, 44 Cal.4th at pp. 582-583; Foxgate, supra, at
pp. 14-17.)
Thus, in Foxgate, we concluded that under the confidentiality provisions of
section 1119, and under section 1121, which strictly limits the content of
mediators‟ reports,4 a mediator may not submit to the court, and the court may not
consider, a report of communications or conduct by a party which the mediator
believes constituted a failure to comply with an order of the mediator and to

4
Section 1121 provides: “Neither a mediator nor anyone else may submit to
a court or other adjudicative body, and a court or other adjudicative body may not
consider, any report, assessment, evaluation, recommendation, or finding of any
kind by the mediator concerning a mediation conducted by the mediator, other
than a report that is mandated by court rule or other law and that states only
whether an agreement was reached, unless all parties to the mediation expressly
agree otherwise in writing, or orally in accordance with [s]ection 1118.”
11

participate in good faith in the mediation process. As we noted, the pertinent
statutes are clear and unambiguous, thus precluding judicially crafted exceptions.
Even if the failure to allow such a report means there is no sanction for a party‟s
refusal to cooperate during a mediation, we observed, “the Legislature has
weighed and balanced the policy that promotes effective mediation by requiring
confidentiality against a policy that might better encourage good faith participation
in the mediation process.” (Foxgate, supra, 26 Cal.4th 1, 17.)
Moreover, we pointed out, there was no justification to ignore the plain
statutory language, because a literal interpretation neither undermined clear
legislative policy nor produced absurd results. As we explained, the Legislature
had decided that the candor necessary to successful mediation is promoted by
shielding mediation participants from the threat that their frank expression of
views during a mediation might subject them to sanctions based on the claims of
another party, or the mediator, that they were acting in bad faith. (Foxgate, supra,
26 Cal.4th 1, 17.)
In Rojas, we confirmed that under the plain language of the mediation
confidentiality statutes, all “writings” “ „prepared for the purpose of, in the course
of, or pursuant to, a mediation,‟ ” are confidential and protected from discovery.
(Rojas, supra, 33 Cal.4th 407, 416, quoting § 1119, subd. (b).) We explained that
the broad definition of “writings” set forth in section 250, and incorporated by
express reference into section 1119, subdivision (b), encompasses such materials
as charts, diagrams, information compilations, expert reports, photographs of
physical conditions, recordings or transcriptions of witness statements, and written
or recorded analyses of physical evidence. (Rojas, at p. 416.) We agreed that
direct physical evidence itself is not protected, even if presented in a mediation,
because such evidence is not a “writing.” (§§ 250, 1119, subd. (b).) We also
acknowledged that a “writing” is not protected “solely by reason of its
12

introduction or use in a mediation.” (§ 1120, subd. (a).) However, we stressed
that any “writing” is so shielded if that “writing” was prepared in connection with
a mediation. (Rojas, supra, at p. 417.)
Rojas further made clear that the nondiscoverability of writings prepared
for mediation, unlike the shield otherwise provided for certain attorney work
product, is not subject to a “good cause” exception, based on “prejudice” or
“injustice” to the party seeking discovery. (Code Civ. Proc., former § 2018,
subd. (b); see now id., § 2018.030, subd. (b) [attorney work product, other than
writings reflecting “attorney‟s impressions, conclusions, opinions, or legal
research or theories” (id., subd. (a)), is discoverable if court finds “that denial of
discovery will unfairly prejudice the party seeking discovery . . . or will result in
an injustice”].) The mediation confidentiality statutes, we pointed out, include no
similar “good cause” limitation, and courts are thus not free to balance the
importance of mediation confidentiality against a party‟s need for the materials
sought. (Rojas, supra, 33 Cal.4th 407, 414, 423-424.)
In Fair, we construed subdivision (b) of section 1123, which permits
disclosure of a written settlement agreement reached in mediation if, among other
things, “ „[t]he agreement provides that it is enforceable or binding or words to
that effect.‟ ” (Italics added.) “In order to preserve the confidentiality required to
protect the mediation process and provide clear drafting guidelines,” we held that,
to satisfy section 1123, subdivision (b), the written agreement “must directly
express the parties‟ agreement to be bound by the document they sign.” (Fair,
supra, 40 Cal.4th 189, 197, italics added.) Thus, the writing must include, on its
face, “a statement that it is „enforceable‟ or „binding,‟ or a declaration in other
terms with the same meaning.” (Id., at pp. 199-200, italics added.) The mere
inclusion of “terms unambiguously signifying the parties‟ intent to be bound” (id.,
at p. 197, italics added) will not suffice (id., at p. 200).
13

We further determined in Fair that a written settlement reached in
mediation cannot be made admissible by virtue of extrinsic evidence of a party‟s
intent to be bound, such as a representation in court by that party‟s attorney that a
final, enforceable agreement was reached in mediation. As we explained, section
1123, subdivision (b) “is designed to produce documents that clearly reflect the
parties‟ agreement that the settlement terms are „enforceable or binding.‟ ” (Fair,
supra, 40 Cal.4th 189, 198.)
In reaching these conclusions, we noted that a tentative working document
produced in mediation may include terms, such as an arbitration provision,
“without reflecting an actual agreement to be bound. If such a typical settlement
provision were to trigger admissibility, parties might inadvertently give up the
protection of mediation confidentiality during their negotiations over the terms of
settlement.” (Fair, supra, 40 Cal.4th 189, 198.) Durable settlements, we
explained, are more likely to result “if [section 1123, subdivision (b)] is applied to
require language directly reflecting the parties‟ awareness that they are executing
an „enforceable or binding‟ agreement.” (Fair, supra, 40 Cal.4th at p. 198.)
Most recently, in Simmons, we held that the judicial doctrines of equitable
estoppel and implied waiver are not valid exceptions to the strict technical
requirements set forth in the mediation confidentiality statutes for the disclosure
and admissibility of oral settlement agreements reached in mediation. (§§ 1118,
1122, subd. (a), 1124.) Thus, we determined, when the plaintiffs sued to enforce
an oral mediation agreement the defendant had refused to sign,5 the plaintiffs

5
Except where confidentiality has been waived (§ 1124, subd. (b); see fn. 6,
post), or where disclosure is necessary to show fraud, illegality or duress (§ 1124,
subd. (c)), an oral agreement reached in mediation is inadmissible and protected
from disclosure (§ 1119, subds. (a), (b)) unless all of the following requirements
are satisfied: (1) the oral agreement is transcribed by a court reporter, or recorded
(Footnote continued on next page.)
14

could not claim the defendant‟s pretrial disclosure of the agreement for litigation
purposes estopped her from invoking the mediation confidentiality statutes, or
constituted a waiver of their requirements.6
We affirmed once again in Simmons that the Legislature intended the
unambiguous provisions of the mediation confidentiality statutes to be applied
broadly (Simmons, supra, 44 Cal.4th 570, 580), that exceptions are limited to
narrowly proscribed statutory exemptions, and that “[e]xcept in cases of express
waiver or where due process is implicated” (id., at p. 582; see Foxgate, supra,
26 Cal.4th 1, 15-17; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155, 167
(Rinaker) [mediator required to testify where juvenile‟s due process right to

(Footnote continued from previous page.)
by a reliable means of sound recording (§ 1118, subd. (a)), (2) the agreement‟s
terms are recited on the record, in the presence of all parties and the mediator, and
the parties state on the record they agree to the terms recited (id., subd. (b)), (3) the
parties to the agreement “expressly state on the record that the agreement is
enforceable, or binding or words to that effect” (id., subd. (c)), and (4) the
transcription or recording is reduced to writing and signed by the parties within 72
hours after it is recorded (id., subd. (d)). (See § 1124.)

6
As noted above, a communication or writing “made or prepared for the
purpose of, or in the course of, or pursuant to” a mediation may be disclosed or
admitted in evidence if (1) all participants in the mediation expressly so agree in
writing, or orally as prescribed in section 1118 (§ 1122, subd. (a)(1)), or (2) the
communication or writing was prepared “by or on behalf of fewer than all the
mediation participants,” those participants expressly so agree in writing, or orally
as prescribed in section 1118, and “the communication . . . or writing does not
disclose anything said or done or any admission made in the course of the
mediation” (§ 1122, subd. (a)(2)). An oral agreement made “in the course of, or
pursuant to, a mediation” is not inadmissible or protected from disclosure if the
agreement satisfies the requirements of subdivisions (a), (b), and (d) of section
1118 (see fn. 5, ante), “and all parties to the agreement expressly agree, in writing
or orally in accordance with Section 1118, to disclosure of the agreement.”
(§ 1124, subd. (b).)
15

confront witnesses outweighed mediation confidentiality]; Olam v. Congress
Mortg. Co. (N.D.Cal. 1999) 68 F.Supp.2d 1110, 1118-1119, 1129 [parties
expressly waived confidentiality]), mediation confidentiality must be strictly
enforced, even where competing policy considerations are present.
We determined that Simmons, “[l]ike Foxgate and Rojas, . . . [did] not
implicate any due process right equivalent to the right bestowed by the
confrontation clause of the United States Constitution, nor ha[d] the parties
executed express waivers of confidentiality.” (Simmons, supra, 44 Cal.4th at
p. 583.) Accordingly, we concluded that litigation conduct by the defendant, not
meeting the technical requirements for the disclosure of an agreement reached in
mediation, neither estopped her from invoking mediation confidentiality nor
constituted an implied waiver of such confidentiality. (Id. at pp. 582-588; accord:
Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 360-365 (Eisendrath)
[no implied waiver by conduct].)
Here, as in Foxgate, Rojas, Fair, and Simmons, the plain language of the
mediation confidentiality statutes controls our result. Section 1119, subdivision
(a) clearly provides that “[n]o evidence of anything said or any admission made
for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or
subject to discovery . . . .” As we noted in Simmons, section 1119, adopted in
1997, “is more expansive than its predecessor, former section 1152.5. Section
1119, subdivision (a), extends to oral communications made for the purpose of or
pursuant to a mediation, not just to oral communications made in the course of the
mediation. [Citation.]” (Simmons, supra, 44 Cal.4th 570, 581, italics added,
citing Cal. Law Revision Com. com., now reprinted at 29B pt. 3B West‟s Ann.
Evid. Code (2009 ed.) foll. § 1119, p. 391.)
The obvious purpose of the expanded language is to ensure that the
statutory protection extends beyond discussions carried out directly between the
16

opposing parties to the dispute, or with the mediator, during the mediation
proceedings themselves. All oral or written communications are covered, if they
are made “for the purpose of” or “pursuant to” a mediation. (§ 1119, subds. (a),
(b).) It follows that, absent an express statutory exception, all discussions
conducted in preparation for a mediation, as well as all mediation-related
communications that take place during the mediation itself, are protected from
disclosure. Plainly, such communications include those between a mediation
disputant and his or her own counsel, even if these do not occur in the presence of
the mediator or other disputants.7

7
At oral argument, petitioner‟s counsel stressed that section 1119,
subdivision (a) prohibits the discovery or admission in evidence “of anything said
or any admission made for the purpose of, in the course of, or pursuant to, a
mediation . . . .” (Italics added.) Counsel seemed to suggest the italicized phrase
“or any admission made” effectively narrows the plain meaning of “anything said”
by limiting protection to mediation-related oral communications that are in the
nature of damaging admissions. We find no evidence to support this construction.
Similar disjunctive language has existed in the statute since the 1985 adoption of
section 1119, subdivision (a)‟s predecessor, former section 1152.5, subdivision (a)
(Stats. 1985, ch. 731, p. 2379), and appeared in the original version of the 1985
bill (see Assem. Bill No. 1030 (1985-1986 Reg. Sess.) as introduced Feb. 27,
1985, p. 1 (Assembly Bill No. 1030)). Portions of the legislative history of
Assembly Bill No. 1030 declare that the protective purpose extends,
interchangeably, to “disclosures,” “information,” and “communications.”
(Recommendation relating to Protection of Mediation Communications, 11 Cal. L.
Revision Com. Rep. (1985) pp. 241, 247-248, Assem. Com. on Judiciary, Analysis
of Assem. Bill No. 1030 as amended Apr. 8, 1985, pp. 1, 2; Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 1030 as amended July 1, 1985, pp. 1-3.)
However, petitioner cites no document from this history, and we have found none,
that indicates the phrase “or any admission made” was intended, in particular, to
limit the plain meaning of “anything said.” Nor does the history of the 1997
legislation that was enacted as the current statutes suggest any such significance.
On the contrary, as previously noted, the California Law Revision Commission
comment to section 1119, subdivision (a) emphasizes that this provision was
intended to broaden the protection for mediation-related discussions by extending
it beyond utterances “in the course” of a mediation to include “oral
(Footnote continued on next page.)
17

This conclusion is reinforced by examination of section 1122, subdivision
(a)(2), which sets forth the circumstances under which fewer than all of the
participants in a mediation may stipulate to the disclosure of otherwise
confidential mediation-related communications. Under this statute, those
mediation participants “by or on [whose] behalf” a mediation-related
communication, document, or writing was prepared may agree, under specified
statutory procedures, to its disclosure, but only insofar as the communication in
question “does not [reveal] anything said or done . . . in the course of the
mediation.” (Italics added.) Section 1122, subdivision (a)(2) thus presupposes
there are mediation-related communications that (1) are prepared “by or on behalf
of fewer than all the mediation participants,” and (2) do not “disclose anything
said or done . . . in the course of the mediation,” but (3) are nonetheless protected
by mediation confidentiality unless the affected participants otherwise agree.
(Ibid.) Logically, these must include communications that are made or prepared
outside a mediation, but are “for the purpose of” or “pursuant to” the mediation.
(§ 1119, subds. (a), (b).) Such mediation-related communications plainly
encompass those between a mediation disputant and the disputant‟s counsel, even
though these occur away from other mediation participants and reveal nothing
about the mediation proceedings themselves.

(Footnote continued from previous page.)

communications made for the purpose of or pursuant to a mediation.” (Cal. Law
Revision Com. com., 29B pt. 3B West‟s Ann. Evid. Code, supra, foll. § 1119,
p. 391, italics added.) In this context, the phrase “anything said or any admission
made” seems intended, at most, to indicate that the protection applies not only to
damaging admissions conveyed by any means in the context of a mediation, but
also, in an abundance of caution, to all other things “said . . . for the purpose of, in
the course of, or pursuant to, a mediation . . . .” (§ 1119, subd. (a), italics added.)
18

Agreeing with petitioner‟s contrary contention, the Court of Appeal
majority noted that mediation is defined as “a process in which a neutral person or
persons facilitate communication between the disputants to assist them in reaching
a mutually acceptable agreement.” (§ 1115, subd. (a), italics added.) The majority
thus reasoned that the “[l]egislative intent and policy behind mediation
confidentiality are to facilitate communication by a party that otherwise the party
would not provide, given the potential for another party to the mediation to use the
information against the revealing party; they are not to facilitate communication
between a party and his own attorney.” (Italics added.) Focusing on our statement
in Foxgate that the frank exchange essential to a successful mediation “ „is
achieved only if the participants know that what is said in the mediation will not
be used to their detriment through later court proceedings and other adjudicatory
processes‟ ” (Foxgate, supra, 26 Cal.4th 1, 14, italics added), the majority
concluded that a party to mediation, and the party‟s attorney, are a single
mediation “participant” whose communications inter se are not within the
intended purview of the mediation confidentiality statutes.
But there is no persuasive basis to equate mediation “parties” or
“disputants” with mediation “participants,” and thus to restrict confidentiality to
potentially damaging mediation-related exchanges between disputing parties. In
the first place, section 1119, subdivisions (a) and (b), do not restrict confidentiality
to communications between mediation “participants.” They provide more broadly
that “[n]o evidence of anything said” (§ 1119, subd. (a), italics added), and “[n]o
writing” (id., subd. (b)), is discoverable or admissible in a legal proceeding if the
utterance or writing was “for the purpose of, in the course of, or pursuant to, a
mediation . . . .” (Id., subds. (a), (b).) The protection afforded by these statutes is
not limited by the identity of the communicator, by his or her status as a “party,”
19

“disputant,” or “participant” in the mediation itself, by the communication‟s
nature, or by its specific potential for damage to a disputing party.
Second, the Court of Appeal majority‟s assumption that the mediation
“disputants” are the only “participants” in the mediation, and that a disputant and
his or her counsel are thus a single “participant,” does not bear scrutiny.
“Participants” are not defined in the statutory text, but they are mentioned at
several points in the statutory scheme, under circumstances making clear that the
term “participants” includes more than the mediation parties or disputants.
Thus, section 1119, subdivision (c) provides that “[a]ll communications,
negotiations, or settlement discussions by and between participants in the course
of a mediation . . . shall remain confidential.” The California Law Revision
Commission comment following section 1119 states, as to subdivision (c), that
“[a] mediation is confidential notwithstanding the presence of an observer, such as
a person evaluating or training the mediator or studying the mediation process.”
(Cal. Law Revision Com. com., 29B pt. 3B West‟s Ann. Evid. Code, supra, foll.
§ 1119, p. 391.) The implication is that such an observer is to be considered a
“participant” in the mediation, who is obliged to maintain the confidentiality of
communications in the course of a mediation.
An even clearer indication of the correct concept of “participants” arises in
connection with section 1122. As noted above, section 1122, subdivision (a)
states the conditions under which agreement can be reached for the disclosure and
admission in evidence of otherwise confidential materials. Subdivision (a)(1)
states that mediation-related communications and writings are not made
inadmissible, or protected from disclosure, if “[a]ll persons who conduct or
otherwise participate in the mediation” expressly agree to such disclosure by the
prescribed statutory means. Subdivision (a)(2) provides that a communication or
writing prepared “by or on behalf of fewer than all the mediation participants” is
20

not protected from disclosure, or made inadmissible, if “those participants” agree
to permit disclosure, and the communication or writing “does not disclose
anything said or done . . . in the course of the mediation.”
The California Law Revision Commission comment following section 1122
states, in its analysis of subdivision (a)(1), that “mediation documents and
communications may be admitted or disclosed only upon agreement of all
participants, including not only parties but also the mediator and other nonparties
attending the mediation (e.g., a disputant not involved in litigation, a spouse, an
accountant, an insurance representative, or an employee of a corporate affiliate).”
(Cal. Law Revision Com. com., 29B pt. 3B West‟s Ann. Evid. Code, supra, foll.
§ 1122, p. 409, italics added.) The list provided by the Commission is, by its
terms, not all-inclusive (note the “e.g.” preceding the examples given), and no
reason appears why other persons attending and assisting in the mediation on
behalf of the disputants, such as their counsel, are not themselves distinct
“participants” who must agree to the disclosure of confidential mediation-related
communications they made or received.8 Though petitioner urges us to do so, we

8
As real parties observe, Judicial Council rules governing minimum
standards of conduct for civil mediators define a “ „[p]articipant‟ ” in mediation as
“any individual, entity, or group, other than the mediator taking part in a
mediation, including but not limited to attorneys for the parties.” (Cal. Rules of
Court, rule 3.852(3), italics added.) The rules further provide that prior to the first
mediation session, the mediator must provide the participants with a general
explanation of mediation confidentiality. (Id., rule 3.854(c).) Under the rules, the
mediator is further required to give all participants advance warning if he or she
intends to speak with one or more participants outside the other participants‟
presence, and is prohibited from disclosing information revealed in confidence
“unless authorized to do so by the participant or participants who revealed the
information.” (Ibid.) We do not rely directly on the definition of “participant” in
the Judicial Council rules, however, because the definitions therein provided “are
applicable only to these rules of conduct and do not limit or expand mediation
(Footnote continued on next page.)
21

therefore decline to accept the Court of Appeal‟s “single participant”
characterization, which contradicts the plain import of the statutes.9
The Court of Appeal majority also implied that the mediation
confidentiality statutes, in their role as protectors of frank exchanges between the

(Footnote continued from previous page.)
confidentiality under the Evidence Code or other law.” (Advisory Com. com.,
23 pt. 1A West‟s Ann. Codes Court Rules (2006 ed.) foll. rule 3.852, p. 424.)

9
Petitioner urges that even if the attorneys who represent a mediation
disputant are themselves “participants” in the mediation, they should not be
deemed separate “participants” who may thus unilaterally block the discovery and
admission in evidence of mediation-related attorney-client communications
pertinent to the client‟s suit against them for legal malpractice. But we see no
basis to reach this construction of the statutory language. Section 1122,
subdivision (a)(2) clearly requires that when a communication was prepared “by
or on behalf of fewer than all participants, those participants” must expressly
agree to disclosure of the communication. (Italics added.) Any mediation-related
communications from WCCP attorneys to petitioner were prepared “by” those
“participant” lawyers, who, under the statutory language, must therefore consent
by statutory procedures to the disclosure of such communications.

Indeed, other provisions of the statute undermine petitioner‟s contention
that a mediation disputant‟s participating lawyers are bound, as the disputant‟s
agents, by the disputant‟s unilateral decision to waive confidentiality. Section
1115, subdivision (b) defines a “mediator” to include not only the neutral person
who conducts a mediation, but also “any person designated by [the] mediator
either to assist in the mediation or to communicate with the participants in
preparation for [the] mediation.” In turn, section 1122, subdivision (b) provides
that whenever a mediator expressly agrees to disclosure of an otherwise
confidential communication, that agreement also binds the persons described in
section 1115, subdivision (b). Insofar as the statutory scheme expressly defines
one mediation participant (the mediator) to include his or her assisting agents, and
explicitly binds those agents to the mediator‟s disclosure decision, we may assume
the statute does not implicitly extend similar treatment to the relationship between
another mediation participant (a disputant) and the disputant‟s participating
counsel.
22

parties to a mediation, were not intended to trump section 958, which eliminates
the confidentiality protections otherwise afforded by the attorney-client privilege
(§ 950 et seq.) in suits between clients and their own lawyers. But the mediation
confidentiality statutes include no exception for legal malpractice actions by
mediation disputants against their own counsel. Moreover, though both statutory
schemes involve the shielding of confidential communications, they serve separate
and unrelated purposes.
A legal client‟s personal statutory privilege of confidentiality (§§ 953, 954),
applicable to all communications between client and counsel (§ 952), allows the
client to consult frankly with counsel on any matter, without fear that others may
later discover and introduce against the client confidences exchanged in the
attorney-client relationship. The exception to the privilege set forth in section 958
simply acknowledges that, in litigation between lawyer and client, the client
should not be able to use the privilege to bar otherwise relevant and admissible
evidence which supports the lawyer‟s claim, or undermines the client‟s.
By contrast, the mediation confidentiality statutes do not create a
“privilege” in favor of any particular person. (See, e.g., Wimsatt, supra,
152 Cal.App.4th 137, 150, fn. 4; Eisendrath, supra, 109 Cal.App.4th 351, 362-
363; but see, e.g., Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565,
1572, fn. 5 [referring to a “mediation privilege”].) Instead, they serve the public
policy of encouraging the resolution of disputes by means short of litigation. The
mediation confidentiality statutes govern only the narrow category of mediation-
related communications, but they apply broadly within that category, and are
designed to provide maximum protection for the privacy of communications in the
mediation context. A principal purpose is to assure prospective participants that
their interests will not be damaged, first, by attempting this alternative means of
resolution, and then, once mediation is chosen, by making and communicating the
23

candid disclosures and assessments that are most likely to produce a fair and
reasonable mediation settlement. To assure this maximum privacy protection, the
Legislature has specified that all mediation participants involved in a mediation-
related communication must agree to its disclosure.
Neither the language nor the purpose of the mediation confidentiality
statutes supports a conclusion that they are subject to an exception, similar to that
provided for the attorney-client privilege, for lawsuits between attorney and
client.10 The instant Court of Appeal‟s contrary conclusion is nothing more or less
than a judicially crafted exception to the unambiguous language of the mediation
confidentiality statutes in order to accommodate a competing policy concern —
here, protection of a client‟s right to sue his or her attorney. We and the Courts of
Appeal have consistently disallowed such exceptions, even where the equities
appeared to favor them.
Of particular interest in this regard is the Court of Appeal‟s decision in
Wimsatt. There, the court held that mediations briefs and attorney e-mails written
and sent in connection with the mediation were protected from disclosure by the
mediation confidentiality statutes, even when one of the mediation disputants

10
Petitioner urges that if mediation confidentiality applies to private
conversations between lawyer and client, insofar as they relate to a mediation, the
attorneys get the best of both worlds when sued by a client for malpractice in
connection with the mediation — i.e., the suit waives the attorney-client privilege,
allowing the lawyers to present confidential communications favorable to them,
but the mediation confidentiality statutes prevent the client from presenting
evidence of such private discussions insofar as they are damaging to the attorneys.
Petitioner overlooks that the mediation confidentiality statutes work both ways;
they prevent either party to the malpractice suit from disclosing the content of
their private mediation-related communications unless (1) the other agrees by the
statutory means, and (2) the disclosure reveals nothing said or done in the
mediation proceedings themselves.
24

sought these materials in support of his legal malpractice action against his own
attorneys. Confirming that there is no “attorney malpractice” exception to
mediation confidentiality, the Wimsatt court explained: “Our Supreme Court has
clearly and [unequivocally] stated that we may not craft exceptions to mediation
confidentiality. [Citation.] The Court has also stated that if an exception is to be
made for legal misconduct, it is for the Legislature to do, and not the courts.
[Citation.]” (Wimsatt, supra, 152 Cal.App.4th 137, 163.) As the court in Wimsatt
acknowledged, “[t]he stringent result we reach here means that when clients, such
as [the malpractice plaintiff in that case], participate in mediation they are, in
effect, relinquishing all claims for new and independent torts arising from
mediation, including legal malpractice causes of action against their own counsel.”
(Ibid.)
The instant Court of Appeal majority reasoned that Wimsatt‟s facts were
distinguishable, because there, communications between counsel for the disputants
were at issue, whereas here, the communications sought occurred only between
petitioner and his own counsel. However, as we have explained, the language of
the mediation confidentiality statutes extends beyond the narrow circumstances at
issue in Wimsatt; it plainly includes every oral or written communication by any
person that occurs “for the purpose of, in the course of, or pursuant to, a
mediation.” (§ 1119, subds. (a), (b).) As Wimsatt correctly determined, that broad
rule does not become inapplicable in cases where a client seeks disclosure of the
confidential communication as evidence in a legal malpractice action against his
or her attorneys.
A United States District Court case, Benesch v. Green (N.D.Cal. 2009)
2009 WL 4885215 (Benesch), more recent than the Court of Appeal decision in
this case, supports our analysis even more closely than does Wimsatt. In Benesch,
a mediation disputant sued her attorney, claiming counsel committed malpractice
25

by inducing her, in the mediation, to sign an enforceable “Term Sheet” that failed
to meet her aim of ensuring her daughter‟s inheritance rights. Defendant attorney
sought summary judgment, asserting that the client had no case without
introducing evidence protected by the mediation confidentiality statutes, including
“the legal advice that [counsel] gave to [the client], and the circumstances in
which the Term Sheet was executed.” (Id., at p. *5.)
The district court denied summary judgment, ruling that it was not
absolutely clear the mediation confidentiality statutes left the client without
evidence sufficient to prove her case. Nonetheless, the court agreed that the
multiple California cases construing the mediation confidentiality statutes,
including Wimsatt, “generally support Defendant‟s position” that mediation-
related communications, including those only between client and counsel, are not
subject to disclosure, even when this may inhibit a client‟s claim that her lawyer
committed malpractice. (Benesch, supra, 2009 WL 4885215, *5.)
In particular, Benesch criticized the instant Court of Appeal majority‟s
decision as at odds with section 1119, subdivision (a), contrary to the rule against
implied exceptions to mediation confidentiality, and “in significant tension with
the large majority of California appellate decisions” construing the mediation
confidentiality statutes. (Benesch, supra, 2009 WL 4885215, *7.) As the district
court observed, even if a private attorney-client conversation did not occur “in the
course of” a mediation, this circumstance is not enough to exempt the
communication from confidentiality, because the statutory “protections also
encompass communications made „for the purpose of‟ or „pursuant to‟ mediation
. . . .” (Ibid.) The latter phrases, the court explained, “must necessarily include
statements that were not made in the course of the mediation itself, or those
additional provisions would be superfluous.” (Ibid.)
26

As pertinent here, the Benesch court declared, “Communications between
counsel and client that are materially related to the mediation, even if they are not
made to another party or the mediator, are „for the purpose of‟ or „pursuant to‟
mediation.” (Benesch, supra, 2009 WL 4885215, *7.) Indeed, the court noted, if
protected communications did not include those outside the mediation
proceedings, it would be unnecessary and useless for section 1122, subdivision
(a)(2) to provide that communications by and between fewer than all participants
in a mediation may be disclosed if all such participants agree and “ „the
communication . . . does not disclose anything said or done . . . in the course of
mediation.‟ ” (Benesch, supra, at p. *7.)
We agree with this analysis. We further emphasize that application of the
mediation confidentiality statutes to legal malpractice actions does not implicate
due process concerns so fundamental that they might warrant an exception on
constitutional grounds. Implicit in our decisions in Foxgate, Rojas, Fair, and
Simmons is the premise that the mere loss of evidence pertinent to the prosecution
of a lawsuit for civil damages does not implicate such a fundamental interest.
The Court of Appeal in Wimsatt expressly reached this very conclusion.
There, the trial court had found that the mediation briefs and e-mails sought by the
legal malpractice plaintiff were subject to disclosure notwithstanding the
mediation confidentiality statutes. The court had relied on Rinaker, supra,
62 Cal.App.4th 155, which held that, under the circumstances of that case, the
statutes governing mediation confidentiality were outweighed by juveniles‟
constitutional right to obtain evidence crucial to their defense against allegations
of criminal conduct.
However, in Wimsatt, the Court of Appeal rejected the analogy to Rinaker,
explaining that “in Rinaker the information sought to be introduced was in
delinquency proceedings where the minors were being charged with criminal
27

activity. In Rinaker, the information to be elicited (admissions made by the
victim) could have exonerated the minors. To deny the minors access to the
information would have denied them their constitutionally protected rights. In
contrast, the proceedings before us involve a civil legal malpractice action where
money damages are sought. The present case is no different from the thousands of
civil cases routinely resolved through mediation.” (Wimsatt, supra,
152 Cal.App.4th 137, 162.)11
Finally, while we pass no judgment on the wisdom of the mediation
confidentiality statutes, we cannot say that applying the plain terms of those
statutes to the circumstances of this case produces a result that is either absurd or
clearly contrary to legislative intent. The Legislature decided that the
encouragement of mediation to resolve disputes requires broad protection for the
confidentiality of communications exchanged in relation to that process, even
where this protection may sometimes result in the unavailability of valuable civil
evidence. To this end, the Legislature could further reasonably conclude that
confidentiality should extend to “anything” said or written “for the purpose of, in
the course of, or pursuant to” a mediation (§ 1119, subds. (a), (b)), including
mediation-related discussions between a mediation disputant and his own counsel,
subject only to express waiver by all mediation “participants” involved in the
communication (§ 1122), including such attorneys.

11
Indeed, by their plain terms, section 1119, subdivisions (a) and (b), protect
mediation-related communications from disclosure and admissibility only in
“arbitration[s], administrative adjudication[s], civil action[s] [and] other
noncriminal proceeding[s] . . . .” (Italics added.) Thus, we note, these statutes
would afford no protection to an attorney who is criminally prosecuted for fraud
on the basis of mediation-related oral communications.
28

Inclusion of private attorney-client discussions in the mediation
confidentiality scheme addresses several issues about which the Legislature could
rationally be concerned. At the outset, the Legislature might determine, such an
inclusion gives maximum assurance that disclosure of an ancillary mediation-
related communication will not, perhaps inadvertently, breach the confidentiality
of the mediation proceedings themselves, to the damage of one of the mediation
disputants.
Moreover, as real parties observe, the Legislature might reasonably believe
that protecting attorney-client conversations in this context facilitates the use of
mediation as a means of dispute resolution by allowing frank discussions between
a mediation disputant and the disputant‟s counsel about the strengths and
weaknesses of the case, the progress of negotiations, and the terms of a fair
settlement, without concern that the things said by either the client or the lawyers
will become the subjects of later litigation against either. The Legislature also
could rationally decide that it would not be fair to allow a client to support a
malpractice claim with excerpts from private discussions with counsel concerning
the mediation, while barring the attorneys from placing such discussions in context
by citing communications within the mediation proceedings themselves.
We express no view about whether the statutory language, thus applied,
ideally balances the competing concerns or represents the soundest public policy.
Such is not our responsibility or our province. We simply conclude, as a matter of
statutory construction, that application of the statutes‟ plain terms to the
circumstances of this case does not produce absurd results that are clearly contrary
to the Legislature‟s intent. Of course, the Legislature is free to reconsider whether
the mediation confidentiality statutes should preclude the use of mediation-related
attorney-client discussions to support a client‟s civil claims of malpractice against
his or her attorneys.
29

Finally, petitioner urges that application of the mediation confidentiality
statutes to private attorney-client communications creates a difficult line-drawing
problem because, when such discussions occur near the time of a mediation
proceeding but in a broader litigation context, it may be “almost impossible” to
determine whether the discussions were “exclusively” mediation related. But
petitioner‟s suggested alternative — that no private attorney-client
communications, however closely related to a mediation, are covered by mediation
confidentiality — ignores the plain language of the statutes. By their terms, “[n]o
evidence of anything said,” and “[n]o writing . . . prepared” is subject to discovery
or admission in evidence in any “civil action” if the utterance or writing was “for
the purpose of, in the course of, or pursuant to, a mediation . . . .” (§ 1119,
subds. (a), (b), italics added.) The exclusion of all private attorney-client
communications from that proviso would simply engraft an exception that does
not appear in the mediation confidentiality statutes themselves.
Moreover, we need not decide in this case the precise parameters of the
phrase “for the purpose of, in the course of, or pursuant to, a mediation.” The
communications the trial court excluded from discovery and evidence concerned
the settlement strategy to be pursued at an immediately pending mediation. They
were closely related to the mediation in time, context, and subject matter, and a
number of them occurred during, and in direct pursuit of, the mediation
proceeding itself. Petitioner raises no factual dispute about the relationship
between the excluded communications, or any of them, and the mediation in
which he was involved. There appears no basis to dispute that they were “for the
30

purpose of, in the course of, or pursuant to, a mediation . . . .” (§ 1119,
subd. (a).)12
We therefore conclude that the evidence the trial court ruled
nondiscoverable and inadmissible by reason of the mediation confidentiality
statutes was not, as a matter of law, excluded from coverage by those statutes on
the mere ground that they were private attorney-client communications which
occurred outside the presence or hearing of the mediator or any other mediation
participant. Instead, such attorney-client communications, like any other
communications, were confidential, and therefore were neither discoverable nor
admissible — even for purposes of proving a claim of legal malpractice — insofar
as they were “for the purpose of, in the course of, or pursuant to, a mediation . . . .”

12
Petitioner suggests private attorney-client communications cannot be
covered by the mediation confidentiality statutes, because they are not part of the
“mediation process.” In support of this contention, petitioner cites Saeta v.
Superior Court (2004) 117 Cal.App.4th 261 for the proposition that the concept of
“mediation” has limits. Saeta held that the mediation confidentiality statutes did
not apply to the proceedings of a “termination review board” before which a
discharged employee had a contractual entitlement to review of the termination
decision. The board was composed of an employer representative, an employee
representative, and a “neutral” third member, and was empowered to take
evidence, then report to the employer‟s home office its view whether the
termination should be upheld. (Id. at p. 265.) Applying the premise that
“[statutory] privileges are narrowly construed . . . because they operate to prevent
the admission of relevant evidence” (id., at p. 272), the Saeta court observed that
the board there at issue, which included party representatives, and whose function
was to review and recommend, lacked two minimum elements of the “broad”
definition of mediation — “a neutral mediator or group of mediators” and an “aim
to facilitate a mutually acceptable result” by the parties‟ voluntary agreement (id.,
at p. 271). Nothing in Saeta is inconsistent with what we conclude here. No party
disputes that the proceeding of August 4, 2004, was a mediation, within the
meaning of section 1115, to attempt to settle the VDO suit. The only question
presented is whether certain attorney-client communications were “for the purpose
of, in the course of, or pursuant to,” that mediation. (§ 1119, subd. (a).)
31

(§ 1119, subd. (a).) By holding otherwise, and thus overturning the trial court‟s
exclusionary order, the Court of Appeal erred. We must therefore reverse the
Court of Appeal‟s judgment.
CONCLUSION
The Court of Appeal‟s judgment is reversed.
BAXTER, J.
WE CONCUR:
KENNARD, Acting C.J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
GEORGE, J.*

_____________________________
* Retired Chief Justice of California, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
32

CONCURRING OPINION BY CHIN, J.

I concur in the result, but reluctantly.
The court holds today that private communications between an attorney and
a client related to mediation remain confidential even in a lawsuit between the
two. This holding will effectively shield an attorney‟s actions during mediation,
including advising the client, from a malpractice action even if those actions are
incompetent or even deceptive.1 Attorneys participating in mediation will not be
held accountable for any incompetent or fraudulent actions during that mediation
unless the actions are so extreme as to engender a criminal prosecution against the
attorney. (See maj. opn., ante, at p. 28, fn. 11.) This is a high price to pay to
preserve total confidentiality in the mediation process.
I greatly sympathize with the Court of Appeal majority‟s attempt to
interpret the statutory language as not mandating confidentiality in this situation.
But, for the reasons the present majority gives, I do not believe the attempt quite
succeeds.
Moreover, although we may sometimes depart from literal statutory
language if a literal interpretation “would result in absurd consequences that the

1
I emphasize that I am not suggesting there was any malpractice or
deception in this case. The merits of the underlying lawsuit are not before us and,
after today‟s ruling, might never come before any court. I am speaking in general.
1

Legislature did not intend” (In re Michele D. (2002) 29 Cal.4th 600, 606), I
believe, just barely, that the result here does not so qualify. Plausible policies
support a literal interpretation. Unlike the attorney-client privilege — which the
client alone holds and may waive (Evid. Code, §§ 953, 954) — mediation
confidentiality implicates interests beyond those of the client. Other participants
in the mediation also have an interest in confidentiality. This interest may extend
to private communications between the attorney and the client because those
communications themselves will often disclose what others have said during the
mediation. Additionally, as the majority notes, it might “not be fair to allow a
client to support a malpractice claim with excerpts from private discussions with
counsel concerning the mediation, while barring the attorneys from placing such
discussions in context by citing communications within the mediation proceedings
themselves.” (Maj. opn., ante, at p. 29.)
Accordingly, I agree with the majority that we have to give effect to the
literal statutory language. But I am not completely satisfied that the Legislature
has fully considered whether attorneys should be shielded from accountability in
this way. There may be better ways to balance the competing interests than
simply providing that an attorney‟s statements during mediation may never be
disclosed. For example, it may be appropriate to provide that communications
during mediation may be used in a malpractice action between an attorney and a
client to the extent they are relevant to that action, but they may not be used by
anyone for any other purpose. Such a provision might sufficiently protect other
participants in the mediation and also make attorneys accountable for their actions.
But this court cannot so hold in the guise of interpreting statutes that contain no
such provision. As the majority notes, the Legislature remains free to reconsider
this question. It may well wish to do so.
2

This case does not present the question of what happens if every participant
in the mediation except the attorney waives confidentiality. Could the attorney
even then prevent disclosure so as to be immune from a malpractice action? I can
imagine no valid policy reason for the Legislature to shield attorneys even in that
situation. I doubt greatly that one of the Legislature‟s purposes in mandating
confidentiality was to permit attorneys to commit malpractice without
accountability. Interpreting the statute to require confidentiality even when
everyone but the attorney has waived it might well result in absurd consequences
that the Legislature did not intend. That question will have to await another case.
But the Legislature might also want to consider this point.
CHIN, J.
3


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Cassel v. Superior Court __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 179 Cal.App.4th 152
Rehearing Granted

__________________________________________________________________________________

Opinion No. S178914
Date Filed: January 13, 2011
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William A. MacLaughlin

__________________________________________________________________________________

Attorneys:
Makarem & Associates, Ronald W. Makarem, Peter M. Kunstler, Jamie R. Greene; Mink Law Firm and
Lyle R. Mink for Petitioner.

Sauer & Wagner, Gerald L. Sauer and Laurie B. Hiller for John Porter and Deborah Blair as Amici Curiae
on behalf of Petitioner.

No appearance for Respondent.

Haight Brown & Bonesteel, Peter Q. Ezzel, Nancy E. Lucas and Stephen M. Caine for Real Parties in
Interest.
Robie & Matthai, Kyle Kveton and Steven Fleischman for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Real Parties in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Ronald W. Makarem
Makarem & Associates
11601 Wilshire Boulevard, Suite 2440
Los Angeles, CA 90025-1760
(310) 312-0299

Gerald L. Sauer
Sauer & Wagner
1801 Century Park East, Suite 1150
Los Angeles, CA 90067
(310) 712-8100

Peter Q. Ezzel
Haight Brown & Bonesteel
6080 Center Drive, Suite 800
Los Angeles, CA 90045-1574
(310) 215-7100

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issues: (1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evidence Code sections 1115 through 1128? (2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evidence Code section 1119, subdivision (c) and 1122, subdivision (a)(2)?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 01/13/201151 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437S178914Review - Civil Original Proceedingsubmitted/opinion due

Parties
1Cassel, Michael (Petitioner)
Represented by Jamie Rebecca Greene
Makarem & Associates
11601 Wilshire Boulevard, Suite 2440
Los Angeles, CA

2Cassel, Michael (Petitioner)
Represented by Peter Michael Kunstler
Makarem & Associates
11601 Wilshire Boulevard, Suite 2440
Los Angeles, CA

3Cassel, Michael (Petitioner)
Represented by Lyle R. Mink
Mink Law Firm, PC
1801 Century Park East, Suite 2600
Los Angeles, CA

4Cassel, Michael (Petitioner)
Represented by Ronald W. Makarem
Makarem & Associates
11601 Wilshire Boulevard, Suite 2440
Los Angeles, CA

5Superior Court of Los Angeles County (Respondent)
Represented by Frederick R. Bennett
Superior Court of Los Angeles County
111 N. Hill Street, Suite 546
Los Angeles, CA

6Wasserman Comden Casselman & Pearson, LLP (Real Party in Interest)
Represented by Peter Q. Ezzell
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

7Wasserman Comden Casselman & Pearson, LLP (Real Party in Interest)
Represented by Nancy Elizabeth Lucas
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

8Wasserman Comden Casselman & Pearson, LLP (Real Party in Interest)
Represented by Stephen M. Caine
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

9Casselman, David B. (Real Party in Interest)
Represented by Peter Q. Ezzell
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

10Casselman, David B. (Real Party in Interest)
Represented by Stephen M. Caine
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

11Wasserman, Steve K. (Real Party in Interest)
Represented by Peter Q. Ezzell
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

12Wasserman, Steve K. (Real Party in Interest)
Represented by Stephen M. Caine
Haight Brown & Bonesteel, LLP
6080 Center Drive, Suite 800
Los Angeles, CA

13Association of Southern California Defense Counsel (Amicus curiae)
Represented by Steven Samuel Fleischman
Robie & Mathiai
500 S. Grand, Suite 1500
Los Angeles, CA

14Porter, Deborah Blair (Amicus curiae)
Represented by Gerald Lawrence Sauer
Sauer & Wagner, LLP
1801 Century Park East, Suite 1150
Los Angeles, CA

15Porter, John (Amicus curiae)
Represented by Gerald Lawrence Sauer
Sauer & Wagner LLP
1801 Century Park East, Suite 1150
Los Angeles, CA


Opinion Authors
OpinionJustice Marvin R. Baxter
ConcurJustice Ming W. Chin

Dockets
Dec 23 2009Petition for review filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine   crc 8.25(b)
Dec 23 2009Record requested
 
Dec 23 2009Received Court of Appeal record
  one doghouse
Jan 13 2010Answer to petition for review filed
Petitioner: Cassel, MichaelAttorney: Peter Michael Kunstler   (CRC, rule 8.25(b))
Jan 26 2010Reply to answer to petition filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Peter Q. Ezzell  
Jan 26 2010Received:
  Appendix of Case Law (cited in reply to answer to petition for review) Wasserman, Comden, Casselman & Pearson LLP et al. Peter Ezzell, Retained Counsel
Feb 3 2010Petition for review granted
  George, C.J., was absent and did not participate. Votes: Chin, A.C.J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ.
Feb 3 2010Letter sent to:
  counsel. Each party must file a "Certification of Interested Entities or Persons." The completed form should be returned to us within 15 days.
Feb 11 2010Certification of interested entities or persons filed
  Michael Cassel, Petitioner Peter M. Kunstler, counsel
Feb 18 2010Certification of interested entities or persons filed
  Wasserman, Comden, Casselman & Pearson, Real Party in Interest Stephen M. Caine, counsel
Mar 9 2010Opening brief on the merits filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine   (CRC, rule 8.25(b) - FedEx)
Mar 9 2010Received:
  letter from Stephen M. Caine counsel for real parties in interest regarding the opinion of Benesch v. Green, 2009 U.S. Dist. LEXIS 117641 (Dec. 17, 2009).
Apr 6 2010Answer brief on the merits filed
Petitioner: Cassel, MichaelAttorney: Peter Michael Kunstler  
Apr 27 2010Reply brief filed (case fully briefed)
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine   (CRC, rule 8.25(b))
May 26 2010Application to file amicus curiae brief filed
  John Porter and Deborah Blair Porter in support of Petitioner.
May 27 2010Permission to file amicus curiae brief granted
  The application of John Porter and Deborah Blair Porter for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
May 27 2010Amicus curiae brief filed
Amicus curiae: Porter, Deborah BlairAttorney: Gerald Lawrence Sauer  
May 28 2010Application to file amicus curiae brief filed
  Association of Southern California Defense (non-party)
Jun 3 2010Permission to file amicus curiae brief granted
  The application of Association of Southern California Defense Counsel for permission to file an amicus curiae brief in support of real parties in interest is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jun 3 2010Amicus curiae brief filed
Amicus curiae: Association of Southern California Defense CounselAttorney: Steven Samuel Fleischman  
Jun 8 2010Change of contact information filed for:
  Attorney Lyle R Mink to reflect that he is in Suite 2600, not 2200.
Jun 17 2010Response to amicus curiae brief filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine   by counsel for Real Parties in Interest to AC brief filed by John Porter and Deborah Porter.
Oct 5 2010Case ordered on calendar
  to be argued on Tuesday, November 2, 2010, at 9:00 a.m., in San Francisco
Oct 18 2010Filed:
  Letter from Peter M. Kunstler, counsel for petitioner Cassel, requesting to share oral argument time with amici curiae Porter et al.
Oct 19 2010Opposition filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Peter Q. Ezzell   Opposition to petitioner's request to share argument time with amici curiae Porter et al., filed by Peter Q. Ezzell, counsel for real parties in interest Wasserman Comden Casselman & Pearson, LLP et al.
Oct 21 2010Order filed
  The request of petitioner to allocate to amici curiae John Porter et al. 10 minutes of petitioner's 30-minute allotted time for oral argument is granted.
Nov 2 2010Cause argued and submitted
 
Jan 3 2011Justice pro tempore assigned
  George, C.J. (retired), appointed as justice pro tempore to this case.

Briefs
Mar 9 2010Opening brief on the merits filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine  
Apr 6 2010Answer brief on the merits filed
Petitioner: Cassel, MichaelAttorney: Peter Michael Kunstler  
Apr 27 2010Reply brief filed (case fully briefed)
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine  
May 27 2010Amicus curiae brief filed
Amicus curiae: Porter, Deborah BlairAttorney: Gerald Lawrence Sauer  
Jun 3 2010Amicus curiae brief filed
Amicus curiae: Association of Southern California Defense CounselAttorney: Steven Samuel Fleischman  
Jun 17 2010Response to amicus curiae brief filed
Real Party in Interest: Wasserman Comden Casselman & Pearson, LLPAttorney: Stephen M. Caine  
Brief Downloads
application/pdf icon
real-parties-in-interest-petition-for-review.pdf (623001 bytes)
application/pdf icon
petitioners-answer-to-petition-for-review.pdf (383088 bytes)
application/pdf icon
real-parties-in-interest-reply-answer-petition-for-review.pdf (168381 bytes)
application/pdf icon
reply to answer to petition - appendix online-only case law.pdf (768145 bytes)
application/pdf icon
real-parties-in-interest-opening-brief-on-the-merits.pdf (539042 bytes)
application/pdf icon
petitioners-answer-brief-on-the-merits.pdf (456271 bytes)
application/pdf icon
real-parties-in-interest-reply-brief-on-the-merits.pdf (395691 bytes)
application/pdf icon
porter amicus brief in support of petitioner.pdf (1797664 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by patrick flynn

-Facts-
In February 2005, Petitioner Michael Cassel filed a legal malpractice action against Wasserman, Comden, Casselman & Pearson, L.L.P. (WCCP), and certain of its attorneys including Steve Wasserman and David Casselman, alleging that his attorneys induced him into settling a business litigation for a lower amount than he had previously told them he was willing to settle for.

The complaint further alleged: that prior to a pretrial mediation of a trademark infringement suit involving Von Dutch Originals, L.L.C. (VDO) petitioner and his attorneys agreed that he would settle for no less than $2 million. During the mediation, VDO indicated it would pay no more than $1.25 million. Despite the petitioner’s fatigue, his attorneys insisted he continue the mediation and pressured him to accept the offer, allegedly calling him ‘greedy’ for insisting on more. After petitioner left to consult his family, his attorneys called him back to the mediation where they further pressured him into accepting the settlement. According to petitioner, his attorneys threatened to abandon him at the impending trial, misrepresented significant terms of the settlement, assured him they could negotiate a side deal to recoup any losses and falsely assured him they would lower a large portion of their legal fees for this settlement. Eventually after 14 hours of mediation when petitioner was exhausted, he signed VDO’s proposed settlement agreement.

-Procedural history-
In May 2007 when petitioner was deposed in discovery for this action, he testified about meetings with his attorneys preceding the mediation and conversations with his lawyers during the mediation itself. Before trial, the defendants moved in limine to exclude this deposition testimony and all evidence of communications between petitioner and his attorneys that were related to the mediation, including matters discussed at pre-mediation meetings. The trial court granted the motion in limine.

The petitioner sought a writ of mandamus with the California Court of Appeal, which granted mandamus relief. The California Supreme Court then granted review.

-Issues-

  • Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evidence Code sections 1115 through 1128?
  • Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evidence Code section 1119, subdivision (c) and 1122, subdivision (a)(2)?
  • Should the Court uphold a judicial exception to Evidence Code section 1119, subdivision (c) and 1122, subdivision (a)(2) in actions for legal malpractice?

-Holding-
In a unanimous opinion, the Court held that California Evidence Code section 1119(c) and 1122(a)(2) bar admission of all communications for the purpose of, in the course of, or pursuant to a mediation, even if the communications are between a client and his or her attorneys without the other party present. While there are competing policy interests in this case, it is up to the Legislature to balance them and not for the courts to create exceptions for.

-Analysis-
The Court repetitively noted that the Legislature enacted broad provisions protecting the confidentiality of things spoken or written in connection with mediation proceedings in order to encourage the use of mediations. Quoting its earlier opinion in Foxgate, the Court noted that “[a] frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings.” It is through this lens that the Court viewed the statutory language, declaring that, “[e]xcept in rare circumstances, [the confidentiality statutes] must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected.”

Turning to the plain text of the statute, the Court focused on section 1119(a)’s bar on admission of any evidence of anything said or made “for the purpose of, in the course of, or pursuant to, a mediation.” The Court held that the plain language of the statute clearly encompassed the conversations between the petitioner and his attorneys because they were “for the purpose of” and “in the course of” a mediation.

Considering the statutory exceptions, the Court focused on section 1122, which sets out the conditions for disclosure with the assent of all participants to the mediation and conditions for disclosure with the assent of less than all participants. The crucial distinction was whether the attorneys were considered separate ‘participants’ or whether that term only encompassed the parties themselves. The Court ruled that attorneys were separate participants. Despite an express definition of participant in the statutory text, there are several mentions that make clear the term encompasses more than the parties themselves. Most persuasively, the California Law Revision Commissions’ note following section 1122 states that communications may be disclosed with the assent of “all participants, including not only the parties but also the mediator and other nonparties attending the mediation.” The Court argued that since the statutory scheme clearly requires confidentiality of observers and “people who conduct or otherwise participate in” a mediation, it extends to attorneys as well.

The Court also disagreed with the Court of Appeals that the waiver of attorney-client privilege that is triggered by a malpractice suit, codified at section 958, trumps the mediation confidentiality statutes. The Court disagreed because unlike the attorney-client privilege, the mediation confidentiality statues do not operate in favor of any particular person as they apply equally to attorneys and clients. Additionally, since the attorney-client privilege has an express exception in section 958 for malpractice suit, the lack of an express exception for mediations indicates the Legislature did not intend there to be an exception.

Lastly, the Court considered whether to uphold the Court of Appeal’s reasoning that the competing policy concerns warranted a judicial exception. While the Court noted that judicial exceptions to statutory text are acceptable where due process rights may be implicated, or where a result is absurd or clearly contrary to the Legislature’s intent, it held that none of these narrow circumstances applied here because it was a civil action and it was protecting confidentiality, something clearly in line with the legislative intent.

A concurring opinion reluctantly agreed with the Court’s opinion, but suggested the Legislature should consider amending the statute to change the result that attorneys are shielded from their own client’s malpractice suits arising out of their conduct in a mediation.

-Related Cases-
Simmons v. Ghaderi, 44 Cal.4th 570 (2008)
Wimsatt v. Superior Ct., 152 Cal.App.4th 137 (2007)
Fair v. Bakhtiari, 40 Cal.4th 189 (2006)
Rojas v. Superior Ct., 33 Cal.4th 407 (2004)
Foxgate Homeowners’ Ass’n v. Bramalea California, Inc., 26 Cal.4th 1 (2001)

-Tags-
admissability, attorney-client privilege, confidentiality, evidence code, judicial exception, mediation, mediation confidentiality, mediation participant, statutory interpretation, writ of mandamus

by Patrick Flynn