Earlier this month, Governor Brown signed new legislation (SB 954), which requires lawyers to provide their clients with a printed disclosure describing the confidentiality restrictions applicable to mediation.  This disclosure must be provided to a client as soon as reasonably possible before the client agrees to participate in a mediation.  Lawyers also will be required to obtain a printed acknowledgement, signed by their client, stating that the client has read and understands the confidentiality restrictions.

The bill was introduced in response to the legislature’s concern that clients lacked awareness of mediation confidentiality restrictions, especially with regard to communications, admissions, and writings connected to mediation that may be relevant for a possible malpractice suit against the attorney by the client.  The new law, which goes into effect on January 1, 2019, will add Section 1129 to the Evidence Code. Section 1129 contains the text of a sample disclosure that can be used to comply with the disclosure requirement.  In the interests of protecting the client, a lawyer’s failure to comply with the disclosure requirement will not serve as a basis to set aside an agreement reached as a result of the mediation.  (Sec. 1129(e)).

However, attorneys who fail to comply with the disclosure requirement risk discipline from the State Bar. An amendment to Section 1122(a)(3) makes any communications, documents, or writings related to compliance with Section 1129 fair game to be used in a disciplinary proceeding against an attorney who fails to comply with the disclosure requirement.

With the January 1, 2019 effective date of the new law fast approaching, California lawyers who regularly engage in mediation should begin making it their common practice to disclose, in writing, the mediation confidentiality restrictions and obtain written acknowledgement from their clients of the same.