Confidentiality & Mediation
From Metropolitan News-Enterprise, By Stephen M. Ellis, staff writer, full article [here].
Communications between attorneys and clients during mediation do not fall within the purview of mediation confidentiality, this district’s Court of Appeal ruled yesterday.
Reversing a trial court’s ruling, a divided panel of Div. Eight concluded that mediation confidentiality statutes only apply to disputing parties.
Deborah Porter and her husband retained the firm to sue the Manhattan Beach Unified School District and the California Department of Education for failing to provide their autistic son a “free and appropriate public education.” The case, which was filed in 1999 in federal court, went to mediation, and the school district and the department in 2005 agreed to pay more than $6.7 million to settle.
The Porters sued the firm after it failed to follow through on an alleged promise during the mediation to pay Deborah Porter for services she rendered in the case as a paralegal out of the $1.65 million Wyner & Tiffany received in the federal case.
...At trial, evidence of the communications between Wyner & Tiffany and the Porters with respect to the alleged promises made at the mediation were admitted, and a jury found for the Porters.
However, approximately one month later, Ettinger granted a motion for a new trial, citing the then-newly-decided case of Simmons v. Ghaderi (2008) 44 Cal.4th 570.
There, the California Supreme Court took a strict view of mediation confidentiality, unanimously ruling that statements made during the process could not be used to bind a party to a settlement agreement she did not sign.
Ettinger ruled that the jury’s consideration of confidential mediation communications created an irregularity in the proceedings statutorily mandating a new trial.
...In Cassel, the state’s high court has agreed to review whether the private conversations of an attorney and client for the purpose of mediation are entitled to confidentiality, and whether an attorney is a “participant” in a mediation such that communications with a client for purposes of mediation must remain confidential.
The case is Porter v. Wyner, B211398.
Communications between attorneys and clients during mediation do not fall within the purview of mediation confidentiality, this district’s Court of Appeal ruled yesterday.
Reversing a trial court’s ruling, a divided panel of Div. Eight concluded that mediation confidentiality statutes only apply to disputing parties.
Deborah Porter and her husband retained the firm to sue the Manhattan Beach Unified School District and the California Department of Education for failing to provide their autistic son a “free and appropriate public education.” The case, which was filed in 1999 in federal court, went to mediation, and the school district and the department in 2005 agreed to pay more than $6.7 million to settle.
The Porters sued the firm after it failed to follow through on an alleged promise during the mediation to pay Deborah Porter for services she rendered in the case as a paralegal out of the $1.65 million Wyner & Tiffany received in the federal case.
...At trial, evidence of the communications between Wyner & Tiffany and the Porters with respect to the alleged promises made at the mediation were admitted, and a jury found for the Porters.
However, approximately one month later, Ettinger granted a motion for a new trial, citing the then-newly-decided case of Simmons v. Ghaderi (2008) 44 Cal.4th 570.
There, the California Supreme Court took a strict view of mediation confidentiality, unanimously ruling that statements made during the process could not be used to bind a party to a settlement agreement she did not sign.
Ettinger ruled that the jury’s consideration of confidential mediation communications created an irregularity in the proceedings statutorily mandating a new trial.
...In Cassel, the state’s high court has agreed to review whether the private conversations of an attorney and client for the purpose of mediation are entitled to confidentiality, and whether an attorney is a “participant” in a mediation such that communications with a client for purposes of mediation must remain confidential.
The case is Porter v. Wyner, B211398.
Full article [here].
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