January 12, 2011

Mediation confidentiality opinion filing tomorrow

The Supreme Court announced today that tomorrow morning it will file its opinion in Cassel v. Superior Court, raising the questions: “(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)?”

The court granted review in Cassel in February 2010 and heard argument in the case in November. Nine days ago, retired Chief Justice George was appointed a justice pro tem in the case, which he heard argument in before his term ended.

UPDATE: The court’s opinion — authored by Justice Baxter for himself and five others — and Justice Chin’s “reluctant[ ]” concurrence are here. The court enforces mediation confidentiality concerning attorney-client communications during a mediation “even though [doing so] may compromise [the client’s] ability to prove his claim of legal malpractice.”

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