Last week, Governor Jerry Brown signed Senate Bill 954 into law, inserting a new section into the California Evidence Code. Newly-enacted Evidence Code section 1129 requires attorneys to notify their clients about the confidentiality of mediation proceedings before the clients agree to participate in mediation. Attorneys must provide written notice and obtain a signed acknowledgement from the clients of that notice. The new law takes effect on 1 January 2019.

What does the new law require?

Attorneys must provide their clients with a written disclosure containing the mediation confidentiality restrictions listed in the Evidence Code and must obtain a written acknowledgment signed by the client stating that the client has read and understands the confidentiality restrictions.

The format for the disclosures is set out in the statute: The disclosure must be printed in the preferred language of the client, in at least 12-point font, on a single page that is not attached to any other document provided to the client. The acknowledgement must include the names of the attorney and the client that are participating in the mediation and must be signed and dated by the attorney and client.

The new law contains sample disclosure language that, if used, satisfies the disclosure requirements of section 1129.

What types of litigation are covered by the new law?

The new law covers all litigation in California except class or representative actions.

When must clients be notified and provide an acknowledgement?

The duty to notify clients of mediation confidentiality arises “as soon as reasonably possible” before the client agrees to participate in mediation or a mediation consultation. An attorney who is retained after an individual agrees to participate in mediation or a mediation consultation should comply as soon as reasonably possible after being retained. The client must provide the written acknowledgment before any mediation proceedings begin.

What are the consequences of non-compliance?

The new law is designed to encourage mediation confidentiality but does not provide a specific remedy for violations of its requirements. The law does provide that an attorney’s failure to comply with its requirements is not a basis to set aside a settlement reached in or as a result of mediation, and we do not believe that failure to comply would impact the confidentiality of mediation. It is unclear whether the law imposes any consequences on clients as opposed to their attorneys.

SB 954 does not otherwise change existing law regarding mediation confidentiality; it formalizes the practice followed by most mediators and mediation services of obtaining the parties’ acknowledgement of mediation confidentiality and should largely supplant those practices moving forward.

Given the recent trend of courts and legislatures to push back on confidentiality provisions and so-called secrecy agreements in sexual harassment and misconduct settlements, SB 954 provides an important reminder of the need for and rules about confidentiality in the mediation setting.

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