Q: An Attorney represents you in Mediation, aren't the contents/files protected from inclusion later in legal Malpractice?

A: Privileged information can be used in defending against malpractice allegations. It certainly wouldn't be fair to allow a client make outrageous allegations that can easily be disproven.

A: You are correct mediation (not arbitration) matters cannot be used in a legal malpractice case in California. This is a strict rule. Likewise regarding a mediator not testifying.

A: Mediations tend to work because of the open communication they allow by the confidentiality rules. Claims and offers made during a mediation cannot be used as evidence if mediation fails. A mediator can only confirm there was a mediation but cannot be made to testify regarding facts/claims in the case.

A: In California, mediation confidentiality is governed by Evidence Code sections 1115 to 1128. These provisions generally protect the confidentiality of mediation communications, making them inadmissible in future legal proceedings, including legal malpractice cases.

1. Breach of Confidentiality: If an attorney includes references or files from mediation in a legal malpractice suit, it could potentially be considered a breach of confidentiality. Evidence Code section 1119 prohibits the disclosure of any writings or communications made during mediation, with limited exceptions. Attorneys have a duty to maintain the confidentiality of mediation proceedings.

2. Mediator Testimony: Evidence Code section 1121 states that a mediator is not competent to testify in any subsequent civil proceeding regarding the mediation. There are limited exceptions to this rule, such as when all parties to the mediation expressly agree in writing to waive confidentiality or when the testimony relates to a crime or fraud. However, these exceptions are rare, and it is unlikely that a mediator's valuation of the case would be admissible in a legal malpractice suit.

3. Plaintiff's Use of Mediator's Valuation: In most cases, a plaintiff would not be able to use the mediator's valuation of the case in a legal malpractice suit. The mediator's opinions, impressions, and valuations are generally protected by mediation confidentiality. However, if the attorney's actions or inactions during the mediation were so egregious that they amounted to fraud or a crime, there might be a possibility of using the mediator's testimony. But this would be a rare and exceptional circumstance.

In summary, California law provides strong protections for mediation confidentiality, and it would be difficult to include mediation communications or a mediator's valuation in a legal malpractice case. However, every case is unique, and it is best to consult with an experienced legal malpractice attorney to evaluate the specific facts and circumstances of your situation.