Tag Archives: Confidentiality

How Confidential Is Mediation Confidentiality?

Michele Trausch
March 23, 2015

According to the court in Amis v. Greenberg Traurig, the answer is “airtight.”

Mr. Amis contended that he signed a settlement in mediation that resulted in personal exposure to him for his company’s corporate obligations.  He sued for malpractice, arguing that if the matter had been tried, he could not have been found personally liable.

Mr. Amis’s law firm moved for summary judgment as he was forced to concede that all the advice he received regarding the settlement was given during the mediation.  Thus, argued the firm, Mr. Amis could not produce evidence to support his claims and the firm could not produce evidence to defend itself.

Both the trial court and the Court of Appeal agreed, giving judgment to the law firm on the basis that any evidence would be barred by the mediation confidentiality statutes.

This case follows the California Supreme Court decision in Cassel v. Superior Court (2011) 51 Cal.4th 113, which held in part that the judiciary had no authority to craft its own exceptions to the mediation confidentiality statutes, regardless of the equities.

While obviously useful in defending a legal malpractice action, the analysis of Amis applies to any claim arising from conduct during a mediation.