Apr 30, 2019
The New Attorney Duty to Obtain Client Consent Before Mediation: Five Common Misapprehensions
Apr 30, 2019
By Rachel Ehrlich
Evidence Code section 1129 requires that all lawyers representing clients in mediation obtain their client’s written consent to mediate before mediating and after explaining the ramifications of mediation confidentiality (as provided in Evidence Code section 1115, et seq.)
I mediate civil disputes that range in subject matter from insurance coverage and bad faith to personal injury to landlord-tenant. Since Governor Brown signed SB 954 creating Evidence Code sections 1122(a)(3) and 1129, I have been discussing the coming changes with lawyers who represent clients in mediation. Even after these changes became effective on January 1, 2019, many lawyers (of those who are even aware of the changes) still have misapprehensions about them. The five most common ones I’ve seen are:
- The mediation provider obtains the client’s consent.
No, you must obtain your client’s informed written consent to mediation after explaining the effect of confidentiality under the California Evidence Code. (Evid. Code §§ 703.5 and 1115 to 1129.)
- It is the responsibility of the mediation provider to explain confidentiality.
Yes, under California Rule of Court 3.854, in a court-connected mediation program for a general civil case, the mediator is required to explain mediation confidentiality. However, Evidence Code section 1129 puts responsibility for explaining mediation confidentiality and its consequences on attorneys and attorneys only. The statute provides that failure to obtain the mandatory written consent is not a reason to unwind a settlement reached in mediation, but it is a basis for discipline of the attorney—not the mediator.
- The mediation provider has the needed form.
Maybe, as a courtesy, mediation providers will have the statutory form available, but it is unlikely they will have forms available in all languages. Section 1129 provides an example acceptable form to use to document client consent to participate in mediation in view of how mediation confidentiality operates. However, the consent document must be in the client’s preferred language (the statutory example is in English), on a single page in not less than 12-point font, and signed by both the client and the attorney. You may wish to check with bar associations and attorney organizations for translated forms.
- Mediation was already scheduled when I started representing the client so I don’t need to do anything.
No, section 1129 requires that even when a client has already agreed to mediate a matter before the attorney begins representing the client, the attorney “shall” make the required disclosure and obtain the required acknowledgement from the client.
- The mediation is taking place at the courthouse and was unscheduled; I don’t need to do this.
A number of courts in the Bay Area provide mediators at the courthouse for unlawful detainer, civil harassment, and other matters; these are mediations, not settlement conferences being run by pro tem judges. Even if the mediation takes place at the time that the matter is scheduled for a mandatory settlement conference, it is still a mediation under Evidence Code section 1115. Even though the attorney might be on a limited scope representation that was initiated at the courthouse that day, or the attorney and client going to a mandatory settlement conference did not expect to have the opportunity to mediate, if there is mediation, then section 1129 applies.
To learn more about why and how section 1129 came to be, read Ron Kelly’s January 2019 article on mediate.com.
This article was previously published in slightly different form by BASF.
Rachel Ehrlich is a mediator of civil disputes in California and across the country. She is based in the Bay Area and affiliated with Judicate West. Her neutral practice includes a variety of issues that range from insurance coverage and bad faith to real estate (including financing, purchases/disclosures, construction and landlord-tenant) to personal injury.