April 06, 2018

In this article, Jenner & Block Partner Kirsten Hicks Spira and Associate Elizabeth H. Capel explain that mediation confidentiality is designed to encourage settlements by eliminating the fear that statements made during mediation might later be used against a participant.  They highlight the case of Cassel v. Superior Court, in which the California Supreme Court held that a lawyer’s statements in mediation are inadmissible and cannot support a malpractice claim.  Recently, they note, efforts have been made to overturn Cassel and make mediation-related communications admissible in legal malpractice actions and disciplinary proceedings.  They examine the Cassel case and the California Law Revision Commission’s 2017 report recommending that the California legislature enact an exception to mediation confidentiality rules.