Mediation is a way for two parties to settle their issues privately without heading to the courtroom. Whether it is a workplace controversy or two spouses getting a divorce, many prefer this method to get their problems solved faster without as much courtroom drama or expenses.
However, many underestimate how confidential the process is. If your mediation session did not end the way you wanted it to, you will have immense difficulty with any post-settlement disputes. You agreed to keep the session and the matters discussed private, and now there is almost nothing you can do to reverse your actions. The California Senate recently realized how many clients go into mediation not knowing the consequences, so they recently passed a bill to enforce attorneys to give more of a warning about the process.
Senate Bill 954 does not change much about mediation in California. It requires attorneys to disclose more information about the requirements of the confidential process. The attorney must provide their client a printed disclosure of the private restrictions of mediation and acquire the client’s signature stating that they understand what they are going into.
These warnings include:
- How all communication in the process must be private.
- How the client cannot disclose written information in noncriminal proceedings.
- How the client cannot submit the mediator’s report to the court.
- How the mediator cannot testify to the court in a case connected to the mediation.
If the attorney did not provide this communication prior to the process, it does not invalidate any agreement that the two parties reached in the course of the mediation. Because any communications made between you and the attorney are confidential though mediation standards, preparations you were making for the event and discussions made during it cannot be used in a legal malpractice lawsuit.
This new written agreement may give the impression that it is practically impossible to sue your attorney for legal malpractice since you have a minimal chance of reversing the verdict made in the session. However, the bill does require the end of the agreement to clarify that the client’s signature does not limit the lawyer’s potential for liability and that they can report misconduct to the state. The client can use any evidence that demonstrates the attorney’s failure to follow the new requirements to disclose warnings as long as it contains nothing said from your mediation session.
Regardless of whatever law California passes, attorneys should keep their clients up to date on any potential consequences that could arise out of their cases. If you believe you lost a significant amount of money because your lawyer was not communicating with you properly, a legal malpractice attorney can help you determine if you can file a claim against your former legal assistance.