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New CA Court of Appeal Opinion Regarding Mediation Confidentiality

Today, the California Court of Appeal, Second Appellate District, Division Three (LA), issued an opinion in Amis v. Greenberg Traurig LLP et al. (Mar. 18, 2015, B248447) __ Cal.App.4th __, analyzing judicially crafted exceptions to the mediation confidentiality statute. (Slip opn., p. 2.) The Court of Appeal held that “a malpractice plaintiff cannot circumvent mediation confidentiality by advancing inferences about his former attorney’s supposed acts or omissions during an underlying mediation.” (Ibid.)

Plaintiff John Amis (“Amis”) sued his former attorneys, Greenberg Traurig, LLP (“GT”), for professional malpractice. Amis alleged that GT committed attorney malpractice by “‘caus[ing]’ him to execute a settlement agreement that converted his company’s corporate obligations into Amis’s personal obligations without advising Amis that he had little to no risk of personal liability in the underlying litigation.” (Slip opn., p. 2.) The trial court granted summary judgment based on “Amis’s undisputed admission that all advice he received from GT regarding the settlement agreement was given during a mediation.” Amis appealed. (Ibid.)

The Court of Appeal determined that the mediation confidentiality statutes preclude Amis from proving that GT’s acts or omissions caused his damages. (Slip opn., p. 7.) The mediation confidentiality statutes state that all evidence, spoken or written, is not discoverable or admissible in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding. “Even after mediation ends, communications and writings protected by the statutes are to remain confidential.” (Ibid.) The California Supreme Court “has broadly applied the mediation confidentiality statutes and all but categorically prohibited judicially crafted exceptions, even in situations where justice seems to call for a different result.” (Id. at p. 8.) The Supreme Court recognized that this rule “may hinder the client’s ability to prove a legal malpractice claim against his or her lawyers.” (Ibid.)

Thus, here, the Court of Appeal concluded that this rule applies to inferences that GT advised Amis regarding the terms of the settlement documents. “To permit such an inference would allow Amis to attempt to accomplish indirectly what the statutes prohibit him from doing directly—namely, proving GT advised him to execute the settlement agreement during the mediation.” (Slip opn., p. 10.) Further, it “would turn mediation confidentiality into a sword by which Amis could claim he received negligent legal advice during mediation, while precluding GT from rebutting the inference by explaining the context and content of the advice that was actually given.” (Id. at pp. 10-11.) Accordingly, based on the undisputed facts, “Amis cannot prove that any act or omission by GT caused him to enter into the settlement agreement . . . because all of the communication occurred in the context of mediation.” (Id. at p. 9.)

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