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Mediation Confidentiality in California

by Joe Markowitz
February 2015

Mediation's Place by Joe Markowitz

Joe Markowitz

I will be speaking as part of a panel, along with Mary Culbert and Phyllis Pollack, on Saturday, February 28, 2015, at 10:00 a.m., at Loyola Law School. The topic is mediation confidentiality. It's a timely subject, because recent cases have raised questions about whether the broad protections for mediation confidentiality in California, can still be relied upon. In particular, many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined "due process" exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception to mediation confidentiality in attorney malpractice cases.

We will be reviewing the history of mediation confidentiality in California, including discussing the leading cases, statutes and rules on the subject. We will also be discussing the dilemmas involved in maintaining the secrecy of communications among parties in caucus-style mediation. We will review survey information showing how often the courts have had to deal with problems claimed to have arisen in mediation. We will also discuss the possible scope of the "due process" exception, as well as whether an exception should be granted for attorney malpractice. That may lead to discussion of the broader problem of how to handle party dissatisfaction with the results of mediation while maintaining the confidentiality and integrity of the process.

All that, and lunch too. Further information, and registration for the program, sponsored by SCMA and Loyola Law School, can be found here.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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Website: www.mediate-la.com/

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