Dire Implications for Mediation Would Follow from Disqualification

     Plaintiff’s attorney became involved in two related lawsuits against the same defendant, a builder of an apartment building severely damaged by the Northridge earthquake and subsequently demolished. In the first lawsuit the attorney represented the builder’s lender and attended mediation. In the second lawsuit, the same attorney represented the tenants of the apartment building against the builder. The trial judge disqualified the attorney from the second representation, reasoning that otherwise the confidentiality of mediation communications would be destroyed. After losing a motion for reconsideration, the attorney appealed. Barajas v. Oren Realty and Development Company, 57 Cal.App.4th 209 (1997).

     California Code of Civil Procedure section 1152.5 provides that evidence of anything said in a mediation is generally not discoverable or admissible, that documents prepared for mediation are generally not discoverable or admissible, and that “all communications, negotiations, settlement discussions” in a mediation “shall remain confidential.” In Barajas, an opinion authored by Justice Zebrowski, the court held that an attorney who mediates one case is generally not disqualified from litigating later cases against the same party. The Court of Appeal was troubled by the implications of the trial court’s ruling, believing that vulnerability to disqualification would make it more difficult for parties (especially plaintiffs) to get representation in products liability, employment, insurance coverage, civil rights, lender liability, and construction cases. The court also believed that disqualification could become problem in cases where mediation was unsuccessful and an attorney involved in mediation went on to try the case after being exposed to confidential information in the mediation.

The imperfect solution is that in mediation a party must make its own decisions about disclosures in mediation.