Over a number of years the California Law Revision Commission work on a proposal to amend the Evidence Code in order to exclude from the umbrella of mediation confidentiality attorney malpractice or other breaches of fiduciary duty which occurred during the course of mediation. When the CLRC finally submitted its proposed amendments to the California Legislature in late 2017, it did so notwithstanding significant criticism from judicial, attorney and consumer groups. The ultimate result was that the proposed legislation obtained no traction and found no sponsor in the Legislature.
As a backup measure, effective January 1, 2019, a bill was passed to amend Evidence Code §1122 and add Evidence Code §1129. In essence, the amended/new statutes require that all attorneys have their clients sign forms in advance of mediation whereby the clients confirm that they are aware of the broad confidentiality that covers mediation and, specifically, the fact that if clients decide later to sue their attorney for malpractice they cannot (except in limited situations) use anything that occurred at the mediation to support that claim. Evidence Code §1129 includes the specific text of language to be included in the form to be signed by the client and attorney. A form utilizing this required language is available on my website.