Sunday, November 15, 2009
To Avoid a Claim for Malpractice, California Court says Keep Your Mediator Present at All Times
Both the mediation and legal communities in California are abuzz about the Court of Appeals decision in Cassel v. Superior Court (Cal. App. 2 Dist. November 12, 2009)which held that attorney client communications are not protected from becoming evidence when they take place at mediation if the mediator isn't in the room at the time of the communication. Apparently, a well respected lawfirm, Wasserman, Camden and Comden, strongly urged it's client, Mr. Cassel, to accept a $1 million settlement during a private meeting at the mediation. Mr. Cassel agreed and the settlement was drawn up. Now Mr. Cassel is claiming his lawyers coerced him into the settlment and in doing so, breached their fiduciary duty to him. Not only does he seek to unravel the settlement, but seeks additional damages from his attorneys. The Court created a judicial exception to the confidentiality statue where the communication was solely between lawyer and client. Lesson? Lawyer beware. Never let the mediator out of your sight lest your advice, if accepted, maybe subject to later challenges. And your settlement may be unenforceable. Sounds like a good deal for mediators, and a raw deal for mediation confidentiality. Lots to think about on this one.