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).)
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, 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 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
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 [61 Cal.Rptr.3d 200] (Wimsatt).) Accordingly, we will reverse the judgment of the Court of Appeal.
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). (Cassel v. Wasserman, Comden, Casselman & Pearson, L.L.P. (Super. Ct. L.A. County, 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
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 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 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
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 underway. 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, (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
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.
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.
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 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.)
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,
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 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
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.'" (Fair, supra, 40 Cal.4th at p. 196, 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).
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
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
The obvious purpose of the expanded language is to ensure that the statutory protection extends beyond discussions carried out directly between the 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.
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,
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
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.
The Court of Appeal majority also implied that the mediation confidentiality statutes, in their role as protectors of frank exchanges between the parties
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.
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.
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 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.)
A United States District Court case, Benesch v. Green (N.D.Cal., Dec. 17, 2009, No. C-07-03784 EDL) 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 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 at p. *5.)
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 the 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 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.)
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.
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 purpose of, in the course of, or pursuant to, a mediation...." (§ 1119, subd. (a).)
The Court of Appeal's judgment is reversed.
Kennard, Acting C. J., Werdegar, J., Moreno, J., Corrigan, J., and George, 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.
I greatly sympathize with the Court of Appeal majority's attempt to interpret the statutory language as not mandating confidentiality in this
Moreover, although we may sometimes depart from literal statutory language if a literal interpretation "would result in absurd consequences that the Legislature did not intend" (In re Michele D. (2002) 29 Cal.4th 600, 606 [128 Cal.Rptr.2d 92, 59 P.3d 164]), 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. 136.)
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.
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
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.
