The governor of California recently signed a bill proposed by State Senator Bob Wieckowski into law that requires lawyers to inform client of all restrictions related to mediation. The new law also requires lawyers to obtain written disclosure that clients understand the restrictions.

According to Senator Wieckowski, “Senate Bill 954 provides more transparency and a better understanding of the potential ramifications of the mediation process. Confidentiality in mediation allows for more candid discussions by participants, but consumers need to know it also means if problems arise those discussions cannot be used against their attorney in a malpractice claim. This bill is an improvement to the current system and will allow consumers to make better-informed decisions regarding their legal matters.”

It’s standard practice for negotiations, documentation, and talks of settlement in a mediation to be confidential. Should mediation fail and the case end up in court despite efforts to avoid this eventuality, the information from the mediation cannot be used by or against either side.

Following a five-year study by the California Law Revision Commission (CLRC), it has been determined that permitting disclosure of the confidential information from a mediation would be appropriate if the proof is needed to confirm or negate a claim that a lawyer violated a responsibility when representing a client.

Despite this recommendation by the CLRC, mediators, judges, and attorneys opposed the release of the information which led to Senator Wieckowski writing the bill that would legally protect confidentiality in mediation by requiring consumers be provided with a disclosure explaining the confidentiality restrictions in mediation.