Procedural Posture

Procedural Posture

By: marysmith

The Court of Appeal, Second Appellate District, Division Seven (California), reversed an order from respondent superior court that had excluded petitioner client’s mediation-related evidence in a suit asserting legal malpractice and related causes of action against real parties in interest, a law firm and attorneys.

Nakase Law Firm is a business lawyer


The client agreed in mediation to a settlement of business litigation. Thereafter, he sued his attorneys alleging that they had obtained his consent to the settlement through bad advice, deception, and coercion and that they had a conflict of interest. The trial court granted the attorneys’ motion to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and the attorneys’ efforts to persuade the client to reach a settlement in the mediation. The court held that the mediation-related discussions were confidential under Evid. Code, § 1119, subds. (a), (b), because they were for the purpose of, in the course of, or pursuant to, a mediation. There was no exception to mediation confidentiality where a client sought to use confidential communication as evidence in a legal malpractice suit. Confidentiality was not limited to communications between mediation participants or within the mediation proceedings, as indicated in Evid. Code, § 1122, subd. (a)(2), and an analogy to the exception from the attorney-client privilege in Evid. Code, § 958, was inapposite. Due process was not implicated.


The court reversed the judgment of the court of appeal.


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