The Use Of AI Consumer Subscriptions May Compromise Confidentiality
We Published An Article About This In The Daily Journal.
A federal judge in the Southern District of New York has ruled that a client’s legal research using his subscription to an AI platform was not protected by attorney-client privilege, nor by the work-product protection. The client was not an attorney, and the research was not conducted at the direction or behest of the attorney. And the AI program was not an attorney. When a client gives his attorney information that is not protected by attorney-client privilege or work-production protection, it does not convert non-confidential information into confidential information.
We thought that at a time when everyone is turning to AI in order to become their own expert, the confidentiality issue would be of interest to attorneys, mediators, arbitrators, and clients. We are making a copy of our article available here.
Mediation Ethics — An AI Inquiry
An Inquiry Into Mediator Ethics With The Help Of AI
We published an inquiry into mediation ethics with the assistance of AI in 2025 in the last issue of California Litigation, the journal of the Litigation Section of the California Lawyers Association. With the permission of the journal and the CLA, it is republished here and available by inserting the following link in your browser: https://calmediation.org/an-ai-inquiry-into-mediator-ethics-docx-1-1
ABA Opinion 518 Aims To Guide Mediators On Avoiding Misleading Communications
How Might ABA Opinion 518 Impact California Mediation Practice?
The ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 518 on October 15, 2025 to provide guidance on avoiding misleading communication by mediators. The Opinion distinguishes the mediator’s and advocate’s roles. Attorneys in negotiations puff all the time. Under Opinion 518, mediators are not supposed to puff, make misleading statements, or give a party legal advice as to what is in their best interest. That’s the way we read the Opinion.
Lawyer-mediators must avoid misleading communications because parties reasonably view neutrals as truthful, authoritative figures. The opinion emphasizes disclosure, role clarity, and constraints on evaluative persuasion.
COMMENT. California mediators are often evaluative. The line between evaluating, which is legitimate under Opinion 518, and offering legal advice and a suggestion as to what is in a party’s best interest is often blurred. Under Opinion 518, does a mediator say to a party: “Have you considered whether this move is in your best interest?” rather than, “It is in your best interest . . .” Does the first framing pass muster, while the second does not? What persuasive strategic moves are proper to take under Opinion 518? Can mediators poke but not pull?
Does the confidentiality protection California law provides to the mediation process de facto shield a mediator from liability if the mediator puffs, makes a strategic misrepresentation, or offers legal advice?
And what can the mediator, who is not a lawyer, say in mediation?
Perhaps by the time California has its mediation certification program, we’ll all get to study the implications of ABA Opinion 518.
California Lemon Law in 2025 Now Requires ADR
The Legislature Wants To Lessen The Judicial Burden of Lemon Law Cases.
Lemon-law cases in California have shot up in number in recent years. Court filings rose from 15,000 to 25,000 from 2022 to 224. Under Assembly Bill 1755 (AB 1755), mediation between the consumer and the manufacturer must now occur before a suit can go forward.
The timeline for ADR is as follows:
- Mediation must be scheduled within 90 days after the manufacturer’s responsive pleading.
- Mediation must take place within 150 days after filing of the answer/response.
- Except for limited initial disclosures and depositions, full-scale discovery is stayed during the mediation phase.
The new law provides for a standardized release form, clarifying terms for restitution or vehicle replacement. There are sanctions for non-compliance with requirements for the ADR process. Arbitration is an option for manufacturers participating in a designated arbitration certification program.
Miscellaneous: California Lawyers Association Honors Two Members Of ADR Committee
Jeff Daar And Gary Benton Receive Awards For Past And Continuing Contributions To Alternative Dispute Resolution.
The California Lawyers Association held its annual meeting this past weekend at the Sheraton Universal Hotel in Universal City. Jeff Daar and Gary Benton received awards for outstanding contributions to the profession and to ADR. Both Jeff and Gary have been instrumental in promoting California as a venue for international arbitration and in promoting California International Arbitration Week.
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Jeff Daar, Gary Benton, Chief Justice Hon. Patricia Guerrero
Selfie of Chief Justice and blogger.
