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Federal Judiciary

: California Appellate Report

Cassell v. Superior Court (Cal. Ct. App. - Nov. 12, 2009)

By Shaun Martin

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I'm going to have to go with Justice Jackson on this one, rather than Justice Perluss. Which makes the vote 3-1.

Yes, the statute says that mediation stuff is confidential and inadmissible. Yes, the statute broadly defines what I've called "stuff," and includes any "oral and written communications" made ?for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation."

So I agree that technically covers even conversations between an attorney and client before the mediation; e.g., a conversation that the attorney and client had the day before the mediation that prepped the client for the mediation, or a letter doing the same thing. And Justice Perluss is right that, generally, we don't futz with what the Legislature has done; that's their job, not ours.

But come on. That's not at all why we have mediation confidentiality. The whole purpose of the statute is to protect communications amongst the participants, not to protect communications that are entirely internal to one side. For that, we have the attorney-client privilege, and it does a darn good job.

But it doesn't apply when, as here, the client sues his lawyer. When the client says "You forced me to sign a $1.25 million settlement agreement even though I told you I wanted more," both sides get to use privileged information to prove and defend their respective cases. According to Justice Perluss, however, if there's a letter from Client to Attorney the day before the mediation that says "Just so you know where I stand at the mediation, I'll accept anything in the seven figures, so consider that your marching orders," that's inadmissible. Since this was, after all, a communication the purpose of which was to prepare for the mediation.

I get the sentiment. I just don't agree with it. You interpret statutes with a guide to their purpose. The latter's helpful in interpreting or, in some cases, limiting the former. This is one of those cases. There's no reason to protect internal communications. For this reason, even in a more extreme case than the one here, I'd hold, for example, that mediation confidentiality does not cover what an attorney privately told his own client even in the mediation. And vice-versa. When the parties sit with their lawyers in their separate rooms, alone, there's no expectation (or even reason) to keep the communications therein confidential in the event of a dispute between these two parties. And every reason not to keep them confidential, if only for cases exactly like this one.

So I'm on board for the majority opinion here. Would it be better if the statute wasn't written so broadly? Sure. But I understand why it was. To me, that textual breadth still doesn't require us to do something that the Legislature didn't intend. And that would be inequitable to boot.

Just remember that there's a fight here the next time you head into mediation land. I think the case comes out the right way. But that doesn't mean they all will. Head's up.

Full post as published by California Appellate Report on November 12, 2009 (boomark / email).