Managing Confidentiality
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April 2011 |
There is legislation on the horizon to lower the price of mediation confidentiality. What changes are being proposed in the Mediation Confidentiality statutes in light of Cassel v. Superior Court (2011) 51 Cal.4th 113? We all know that Cassel protects the confidentiality of mediation, even when the attorney’s client has committed malpractice during the mediation. But will the California Legislature support this decision or take the cue from the majority opinion: “Of course, the Legislature is free to reconsider whether the mediation confidentiality statutes should preclude the use of mediation-related attorney-client discussions to support a client’s civil claims of malpractice against his or her attorneys.”
What are the arguments for and against complete mediation confidentiality?
There are two policies competing against each other:
1. Leave Cassel alone because once you begin to make exceptions, it becomes a slippery slope and it erodes away any confidentiality of the mediation process;
2. There should be an exception to confidentiality for bad acts committed by bad attorneys.
The Uniform Mediation Act, which California has not adopted, provides for an exception in this instance:
“Section 6 (a) There is no privilege under Section 4 for a mediation communication that is: sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation.”
The proponents of the Cassel decision argue that if the legislature creates an exception then opposing counsel, the mediator and all documents used during the mediation will be subpoenaed in the malpractice action. This malpractice exception will eliminate confidentiality, will prevent frank discussions between the parties regarding the merits of the case, will increase malpractice insurance rates, will increase malpractice actions by disgruntled clients, will cause attorneys to shy away from mediation and mediation will lose its purpose. The proponents argue that for the greater good, Cassel decision should remain. Justice Chin remarks in his concurring opinion that “this is a high price to pay” to preserve total confidentiality in the mediation process
However, those who want to make an exception to attorney malpractice argue that there is no reason to protect bad behavior or protect bad attorneys. Protections should go to the consumer who uses the attorney service. Bad attorneys will take advantage of the mediation process and use mediation for their own purpose, to protect themselves from liability. Those who argue for an exception state that California Evidence Code section 1127 already protects the mediator.
Many professional mediators are supportive of not disturbing Cassel because they fear that they will be subpoenaed to testify in a malpractice action. However, the Cassel decision has placed mediators in a catch 22. Most mediators explain at the beginning of the mediation process that it is confidential. Do mediators define confidentiality by explaining to the parties that their attorney is protected by mediation confidentiality even if he/she commits malpractice and the party cannot use anything said at the mediation to support his or her claim of professional malpractice?
Proposed Changes
The Beverly Hills Bar Association has proposed a resolution before the Conference of California Bar Associations, which if approved, will be introduced as a bill in the legislature. This resolution, which is authored by mediator Elizabeth Moreno, provides for the admissibility of mediation communications directly between the client and his or her attorney, only, where professional negligence or misconduct forms the basis of the client’s allegations against the client’s attorney. This permits the exception for communications only between the attorney and his or her client. This would not eliminate the protection for the mediator, Evidence Code section 1127.
The court in Porter v. Wyner (2010) 183 Cal.App.4th 949reasoned that if the mediation confidentiality sphere were to be extended to the attorney-client relationship it would render section 958 a nullity. Evidence Code section 958 provides that there is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship. The mediation process and its attendant confidentiality would trump the attorney-client privilege and preclude the waiver of it by the very holder of the privilege. This would create a rather anomalous situation wherein a well-established and recognized privilege and waiver process is thwarted by a no privileged statutory scheme designed to protect a wholly different set of disputants.
Biography
Elizabeth A. Moreno is a mediator and arbitrator in the Los Angeles area and will travel to resolve disputes within the Los Angeles, Orange, Ventura, western San Bernardino and western Riverside Counties. Ms. Moreno has been a mediator since 2000 and concentrates in the areas of labor, employment, real estate and insurance. She has served as a neutral in hundreds of cases. Ms. Moreno is serving a three year appointed term with the California State Bar ADR Committee and serves as the chair of the Diversity subcommittee. Prior to becoming a full-time mediator, Elizabeth was a trial attorney for twenty years, handling large exposure complex cases and class actions involving employment, insurance, real property, and business issues.
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