Your Experience with Exception to Mediation Privilege to Prove Malpractice?

We've been asked by a colleague in California about whether we've had experience with testimony regarding a mediation being sought or admitted to prove or disprove attorney malpractice. Anyone have this experience and have a story to relate?

Here's the background.

Here in Washington, under our Uniform Mediation Act (Chapter 7.07 RCW) there is an exception to the mediation privilege over a mediation communication that is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a representative of a party based on conduct occurring during a mediation. RCW 7.07.050(1)(f). 

California doesn't have the UMA. I'm reminded of this almost every time I talk to mediators and advocates practicing there. Seems they're always and forever litigating these issues! But I digress.

A recent California Supreme Court decision held that all communications between an attorney and client that occurred during the course of a mediation were inadmissible, in a client's malpractice case against her attorney, under California Evidence Code Sec. 1119.  Cassel v Superior Court, 51 Cal 4th 113.

There's now a bill pending in the California legislature that would legislatively reverse, at least in part, that decision. It would would make attorney/client communications during a mediation admissible in a suit for malpractice.

For more background, I've attached below the proposed bill, a commentary and talking points paper prepared to oppose the bill.

Our California colleague would be interested in hearing of any of our experiences. The hearing is April 17, so it'd be great if you could weigh-in well before then. Feel free to make your comments below - I'll make sure he's aware of them.

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Here's a blogpost talking about the Cassel case and the pending California bill.



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