Jan 1, 2019

On Jan. 1, new Evidence Code section 1129 came into effect. Along with the addition of paragraph (a)(3) to EC 1120, the new code section requires all attorneys to obtain their clients’ written acknowledgment confirming that the client understands the consequences of mediation confidentiality before the client agrees to mediate. The Code is specific as to the requirements for the written acknowledgment. It must be on a separate, printed disclosure form; not be attached to any other document; in the preferred language of the client; in at least 12 pt. font; and signed and dated by both the attorney and the client.

The new law was formulated in an effort to balance the need for confidentiality to promote negotiated settlements, with the need to promote attorney accountability to clients. Your form should contain the following language in order to comply with the new Code section:

“I (name of client) understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action, including an action against my attorney for malpractice or an ethical
violation”.

The form must be acknowledged, signed and dated by the client, with a statement that the client has read and understands the confidentiality restrictions. While failure to obtain the required consent form may be grounds for attorney discipline, it will not form the basis for overturning a negotiated settlement.

Be sure to have this disclosure form signed by your clients before they agree to mediation.

I look forward to assisting you with your future mediations! Please don’t hesitate to call me if you have any questions.