Bill Text: CA AB2025 | 2011-2012 | Regular Session | Amended

---

Bill Title: Mediation: confidentiality.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2012-06-07 - Referred to Com. on RLS. [AB2025 Detail]

Download: California-2011-AB2025-Amended.html

---

BILL NUMBER: AB 2025	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 10, 2012

INTRODUCED BY   Assembly Member  Wagner   Gorell


                        FEBRUARY 23, 2012

   An act  to amend Section 1120 of the Evidence Code,
  relating to  evidence   mediation
 .



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2025, as amended,  Wagner   Gorell  .
 Evidence: admissibility.   Mediation:
confidentiality. 
   Under existing law, when a person consults a mediator or mediation
service for the purpose of retaining mediation services, or when
parties agree to conduct and participate in a mediation for the
purpose of compromising, settling, or resolving a civil dispute,
anything said in the course of the consultation for mediation
services or in the course of the mediation is not admissible in
evidence nor subject to discovery in any other action or proceeding.
 Existing law provides that evidence that is otherwise
admissible is not inadmissible solely because it was introduced or
used in a mediation or mediation consultation. Additionally, existing
law provides that an agreement to mediate a dispute or to extend the
time within which to act or refrain from acting in a civil action is
admissible, as is the mere fact that a mediator served, is serving,
will serve, or was contacted about serving as a mediator in the
dispute.  
   This bill would provide that communications between a client and
his or her attorney during mediation are admissible in an action for
legal malpractice or breach of fiduciary duty, or both, and in a
State Bar disciplinary action, if the attorney's professional
negligence or misconduct forms the basis of the client's allegations
against the attorney.  
   This bill would require the California Law Revision Commission to
study and report to the Legislature, as specified, concerning the
relationship under current law between mediation confidentiality and
attorney malpractice and misconduct, as well as the availability and
propriety of contractual waivers. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    (a) The California Law Revision
Commission shall study and report to the Legislature regarding the
relationship under current law between mediation confidentiality and
attorney malpractice and other misconduct, and the purposes for, and
impact of, those laws on public protection, professional ethics,
attorney discipline, client rights, the willingness of parties to
participate in voluntary and mandatory mediation and the
effectiveness of mediation, as well as any other issues that the
commission deems relevant. Among other matters, the commission shall
consider Sections 703.5, 958, and 1119 of the Evidence Code and
predecessor provisions, as well as California court rulings,
including, but not limited to, Cassel v. Superior Court (2011) 51
Cal.4th 113; Porter v. Wyner (2010) 183 Cal.App.4th 949, and Wimsatt
v. Superior Court (2007) 152 Cal.App.4th 137.  
   (b)  The commission shall also consider and report on the
availability and propriety of contractual waivers. In conducting its
analysis, the commission shall consider the law in other
jurisdictions, including the Uniform Mediation Act as it has been
adopted in other states, other statutory acts, scholarly commentary,
judicial decisions, and any data regarding the impact of differing
confidentiality rules on the use of mediation.  
   (c) The commission shall request input from experts and interested
parties including, but not limited to, representatives from the
California Supreme Court, the State Bar of California, legal
malpractice defense counsel, other attorney groups and individuals,
mediators, and mediation trade associations. The commission shall
make any recommendations that it deems appropriate for the revision
of California law to balance the competing public interests between
confidentiality and accountability.  
  SECTION 1.    Section 1120 of the Evidence Code is
amended to read:
   1120.  (a) Evidence otherwise admissible or subject to discovery
outside of a mediation or a mediation consultation shall not be or
become inadmissible or protected from disclosure solely by reason of
its introduction or use in a mediation or a mediation consultation.
   (b) This chapter does not limit any of the following:
   (1) The admissibility of an agreement to mediate a dispute.
   (2) The effect of an agreement not to take a default or an
agreement to extend the time within which to act or refrain from
acting in a pending civil action.
   (3) Disclosure of the mere fact that a mediator has served, is
serving, will serve, or was contacted about serving as a mediator in
a dispute.
   (4) The admissibility in an action for legal malpractice, an
action for breach of fiduciary duty, or both, or in a State Bar
disciplinary action, of communications directly between the client
and his or her attorney during mediation if professional negligence
or misconduct forms the basis of the client's allegations against the
attorney.