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An Update To Proposed Mediation Regulation

by Phyllis Pollack
September 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

On August 3, 2012, I posted a blog about Resolution SR-05-01-2012 that was proposed to the California Conference of Bar Associations by Bay Area Lawyers For Individual Freedom. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the Conference at California’s Annual State Bar Convention would not only change the definition of “mediator” in California but also implement mediator regulation by the State Bar of California.

As is its procedure, the Resolutions Committee of the California Conference of Bar Associations reviewed and analyzed this resolution. In its report, it has disapproved it, mainly because of its internal inconsistencies. Its report states in full:

RESOLUTION 05-01-2012
DIGEST
Use and Regulation of Mediators and Mediation Providers
Amends Code of Civil Procedure sections 1775 through 1775.15 and adds Business and Professions Code sections 6240 through 6245 to require that all courts refer cases to alternative dispute resolution programs and to establish minimum qualifications for mediators.
RESOLUTIONS COMMITTEE RECOMMENDATION
DISAPPROVE
History:
Similar to 03-03-08, which was disapproved, and 13-04-2009, which was withdrawn.
Reasons:

This resolution amends Code of Civil Procedure sections 1775 through 1775.15 and adds Business and Professions Code sections 6240 through 6245 to require that all courts refer cases to alternative dispute resolution programs and to establish minimum qualifications for mediators. This resolution should be disapproved because the proposed definitions, minimum qualifications and disciplinary procedures are internally inconsistent and inconsistent with existing law.

The first part of this resolution, to expand and encourage the use of alternative dispute resolution programs, could very well benefit California’s judicial system and the growing need to find less costly and less time-consuming ways to resolve disputes.

However, the second part of this resolution, adding Business and Professions Code sections 6240-6245, is internally inconsistent. The new section 6243, subdivision (a)(2), establishes minimum qualifications for mediators, which require that for a person to become a “mediator”, that person must have mediated “20 cases as a solo mediator.” With this requirement a person can’t become a mediator unless they mediate 20 cases, but they can’t mediate 20 cases unless they’re already qualified as a mediator. Also, section 6241, subdivision (b)(1), defines a “mediator” to include “any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.” This definition necessarily requires that even an assistant satisfy those minimum qualifications. Although this is probably not the intent of the resolution, as drafted it requires virtually everyone assisting with a mediation to meet the minimum qualifications.

Further, section 6241 limits the definition of a “mediator” to those persons who receive compensation for conducting a mediation. However, if the purpose of these new sections is to protect the public from unscrupulous “mediators,” then it should apply to all persons conducting mediations, not just those who receive compensation. An unpaid mediator can coerce a party into an unfair settlement just as easily as a paid mediator can.

Finally, while the idea of having a disciplinary process in place for ensuring that mediators comply with their professional obligations is a noble idea, as proposed, section 6245 conflicts with Evidence Code section 1119. The new section 6245 authorizes the State Bar to investigate and adjudicate the fitness of mediators. Such an adjudication would necessarily require evaluations and examinations of what occurred during mediations. However, Evidence Code section 1119 prohibits the disclosure of anything said or written in connection with mediation in any other proceeding, inclusive of an administrative adjudication. With the express prohibition of Evidence Code section 1119, it would be impossible for the State Bar to actually investigate and evaluate whether the mediator engaged in any misconduct during mediation.

http://calconference.org/html/wp-content/Resolutions/2012/05/Final%20Resolution%20Series%205-2012.pdf

According to the Conference’s procedural rules, the Resolutions Committee’s recommendation to disapprove is placed before the Conference at which point:

3. Action of the Conference: The Conference shall adopt the recommendations of the Resolutions Committee on each resolution as the action of the Conference unless a delegation files a written request requesting further consideration of the resolution. This request shall be known as a call-up. ( Article IV, Section 3)

http://calconference.org/conf_rules_2009.html

If there is a “call-up” of this resolution, it will then be debated at the full Conference for a limited period of time, with the proponent having no more than about 3 minutes ( “limited debate”) or 4 ½ minutes (“full debate”) to speak in favor of the resolution. (Article IV, Section 9)

So, while this resolution is not completely a non-issue quite yet, it appears that it may be heading in that direction. Thankfully, enough people let their views be known so that the Resolutions Committee saw fit to disapprove it.

….. Just something to think about.

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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