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Proposed Legislation To Do Away With Mediation Confidentiality

by Phyllis Pollack
March 2012 Phyllis  Pollack

On Thursday, February 23, 2012, Assembly Member Wagner introduced AB 2025 before the Californai State Legislature. The proposal seeks to create an exception to mediation confidentiality by amending Section 1120 of the California Evidence Code to allow the introduction of evidence:
(4) …in an action for legal malpractice, an

action for breach of fiduciary duty, or both, or in a State Bar
disciplinary action, of communications directly between the client
and his or her attorney during mediation if professional negligence
or misconduct forms the basis of the client’s allegations against
the attorney.

Other provisions in Evidence Code section 1120 which already provide exceptions include:

(1) The admissibility of an agreement to mediate a dispute.

(2) The effect of an agreement not to take a default or an
agreement to extend the time within which to act or refrain from acting in a pending civil action.

(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute.

The full bill may be found at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-2050/ab_2025_bill_20120223_introduced.pdf

In sum, this proposed legislation will allow a client to bring either a civil action or disciplinary action before the State Bar against her attorney if she believes that her attorney breached her fiduciary duty or committed legal malpractice, professional negligence or misconduct during a mediation. It does not amend any other sections of the California Evidence Code to allow either the mediator or the other participants to the mediation to testify as to what occurred during the mediation. They must remain mum, bound by mediation confidentiality.

On March 8, 2012, this bill was referred out to the Committee on the Judiciary for further consideration.

If you wish to comment on the proposed legislation, AB 2025, including suggested amendments, please contact its sponsor, Assembly Member Donald P. Wagner either at his district office; 3 Park Plaza, Suite 150, Irvine, Ca. 92614; telephone: 949-863-7070 or at his office in Sacramento; The State Capitol, Room 4153, Sacramento, Ca 94249-0070; telephone: 916-319-2070.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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Website: www.pgpmediation.com/index.htm

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