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Snyder: Written Mediation Disclosure Agreements

  • State: California
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Effective Jan. 1, 2019, California attorneys must provide a written mediation disclosure statement to clients or face potential disciplinary consequences.

The disclosure does not protect clients so much as inform them about mediation confidentiality. Under changes to the Evidence Code, attorneys must have clients sign off on a mediation disclosure form as soon as reasonably possible before the client agrees to participate in mediation.

If the attorney is hired after the client has agreed to mediate, the attorney must get the client’s sign-off as soon as reasonably possible after being retained. If the client signed off on a disclosure with prior counsel, new counsel should get another acknowledgement naming the current attorney. All clients should sign it.

The disclosure must be on a single page not attached to any other document and must be printed in the preferred language of the client in at least 12-point font. It must include the names of the attorney and the client, and be signed and dated by the attorney and the client.

The law specifically contemplates an “attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.”

Uh-uh, not me

What if the Evidence Code doesn’t apply to your practice area? You work in administrative law, such as workers' compensation, or limit your practice to federal court.

Even if you never handle a case with a state civil court aspect nor a federal case with diversity jurisdiction, observing the new rule is the safe choice. That this amendment passed at all started with concerns about legal malpractice suits founded on communications within the mediation process.

Legal malpractice suits are filed in state court or rely on diversity jurisdiction using state rules. Mediation confidentiality rules apply to all types of practice.

What does the disclosure do — and not do?

The disclosure lays out the basics of the mediation disclosure rules, i.e., an almost total evidentiary exclusion of communications. This includes legal advice provided to a client during the mediation. Absence of the client’s signature or that the client did not receive the form is not a ground for invalidating a settlement agreement.

The “safe harbor” disclosure form in Evidence Code 1129 assures clients they can still sue for malpractice or report misconduct to the State Bar, just not using any evidence relating to a mediation.

How to comply

Attorneys who regularly mediate should consider obtaining the disclosure at the beginning of the representation. The safe harbor form doesn’t limit the disclosure to a single case. Nonetheless, attorneys working on multiple cases under an ongoing or tripartite relationship may wish to add language to make it clear that the client is executing a blanket sign-off.

Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through WCMediator.com.

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James Witkop Dec 17, 2018 a 8:12 am PST

I am interpreting this new requirement to apply to private mediations. I am not interpreting this to apply to cases where the client has agreed to the mediation process as part of contractual obligation, such as carve-outs under LC 3201.5-.7. If anyone has a different opinion on the subject, I welcome it. Thanks.

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