Vincent Nolan Mediation

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Mediation Communication and Confidentiality

Cassel vs. Superior Court (2011) 51 C4 113

In Cassel vs. Superior Court (2011) 51 C4 113, the plaintiff sued his former attorney for malpractice claiming that the attorney coerced him during mediation to accept a settlement offer that was too small.

The attorney argued the malpractice case should not be allowed to go forward because statements made at mediation are inadmissible under California Evidence Code §1119.

This provision makes any statement or writing pertaining to mediation inadmissible in a subsequent court, administrative or arbitral forum.

The Appellate Court ruled the statements were admissible because they were between the attorney and the client, not communications between the participants in the mediation.

The California Supreme Court held that in order to encourage the candor necessary for a successful mediation, except for specified statutory exceptions, all statements or writings which occur during or pursuant to mediation are confidential and are inadmissible in any future court action, including a malpractice case.