When a California lawyer is accused of wrongdoing arising from mediation, confidentiality is the first evidentiary consideration for both sides. Can the client use mediation communications to support malpractice? If not, how does the client prove the lawyer erred?
Mediation confidentiality statutes vary from state to state. Nineteen states and Washington, D.C., have mediation confidentiality statutes with one or more exceptions expressly addressing professional misdeeds, generally (including mediators), or attorney misdeeds specifically. See, e.g., the Uniform Mediation Act (“UMA”), used by eleven states, including Hawaii, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington, as well as D.C. Other states, like Virginia, Florida, Michigan, New Mexico, Maine, Maryland and Minnesota, have independent state statutes, which also contain varied exceptions for professional misconduct, including malpractice claims. North Carolina’s exception only covers attorney and mediator disciplinary proceedings.
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