Mediation Privilege: Bettering Best Practices

California’s mediation privilege, codified in Evidence Code section 1119, provides that statements made and writings prepared for the purpose of, in the course of, or pursuant to mediation are generally inadmissible and not discoverable. This privilege also extends to settlement discussions occurring “in the course of a mediation.”  Such limitations impact the client’s ability to subsequently pursue a malpractice claim against an attorney for advice given during mediation.

In order to address this issue, as of January 1, 2019, attorneys are required to make certain disclosures about the mediation privilege to their clients pursuant to Evidence Code section 1129. The statute requires attorneys to bring the mediation privilege to their client’s attention via a written disclosure as soon as possible before the client agrees to mediate a matter. The goal of the disclosure is to alert clients to the fact the mediation privilege will remain in force even if they sue their counsel for malpractice and wish to support their case with documents, communications, and the like prepared in the context of mediation.

While the reach of this new statute may appear limited to traditional mediation, it would be wise for attorneys to make the disclosures and obtain client consent as directed by section 1129 even earlier in the case. Due to the mediation privilege’s application to statements made and writings prepared “for the purpose of” mediation, settlement discussions with one’s client could be protected by the mediation privilege if they arise in the context of proactively setting one’s case up for a productive mediation. The ever-evolving list of “best practices” for attorneys should include providing the section 1129 disclosure before settlement is discussed, allowing clients and attorneys alike to be on the same page as they proceed with litigation.