Communications between attorney and client during mediation are not protected by mediation confidentiality

(Admissions)  Communications between attorney and client during mediation are not protected by mediation confidentiality and are thus admissible. John Porter v. Steven Wyner,  2010 DJDAR  5312  (April 8, 2010). 

Evidence Code Section 1119 (sub a) provides that evidence of anything said or admissions made for the purpose of or in the course  of the mediation process is not admissible in any civil action.  In this case, the court found that the above Evidence Code Section did not extend to communication between a lawyer and his client during the mediation process.  To apply such confidentiality would create a chilling effect on the use of mediation.  Thus, communications between an attorney and his client cannot be considered in “the course of” a mediation.  The confidentiality that is accorded mediation was never intended to protect communications or agreements between a client and his own counsel should a conflict arise between them.  The attorney-client privilege, codified in Evidence Code Section 954 provides the necessary protection.

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