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Second Thoughts on Mediation Confidentiality

by Phyllis Pollack
September 2015

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Recently, I posted a blog about the August 2015 meeting of the California Law Revision Commission (CLRC) in which as part of its study on the “Relationship between Mediation Confidentiality and Attorney Malpractice and Other Misconduct ” (Study K-402), the Commission requested that Staff Counsel draft legislation to include exceptions to mediation confidentiality. Specifically, and in pertinent part, those draft minutes provide:

General Concept

The Commission directed the staff to begin the process of preparing a draft of a tentative recommendation that would propose an exception to the mediation confidentiality statutes (Evid. Code §§ 1115-1128) to address “attorney malpractice and other misconduct.” (Commissioner King voted against this decision.)

Types of Misconduct to Cover

The proposed new exception should apply to alleged misconduct of an attorney or an attorney-mediator.

The proposed new exception should only apply to alleged misconduct in a professional capacity.

The proposed new exception should apply regardless of whether the alleged misconduct occurred during a mediation.

Types of Proceedings in Which the Exception Would Apply

The proposed new exception should apply in the following:

           (1) A disciplinary proceeding against an attorney for alleged

             misconduct while acting as an attorney.

 (2) A disciplinary proceeding against an attorney for alleged misconduct while  acting   as an attorney-mediator.

(3) A malpractice case against an attorney for conduct in the role of an attorney.

(4) A malpractice case against an attorney for conduct in the role of attorney-mediator. (Commissioner Miller-O’Brien abstained from this decision.)….

Draft Minutes • August 7, 2015

When I read these minutes initially, I assumed (erroneously) that the exception would apply to all mediators- attorneys and non- attorneys alike. Only after some discussion with my colleagues and a very careful re-reading of the above, did I realize that the ONLY mediators who will be affected by these proposals are attorneys. Those mediators who are NOT attorneys will be completely unaffected. Mediation confidentiality as it exists today in California under Cassel v Superior Court (2011) 51 Cal 4th 113 and its predecessors will remain absolute and unequivocal in those mediations being conducted by a mediator who is NOT an attorney. The rules as we know them today will apply: what goes on in mediation stays in mediation, no matter what.

However, if the mediator is also an attorney, then not only will the attorneys who are representing the parties be subject both to discipline by the State Bar and to possible civil litigation but so will be the mediator! The exceptions to mediation confidentiality will apply both to the attorney representing a party and to the mediator.

This means that  attorneys who represent parties wishing to mediate will now have a new option: do they use a mediator who is not an attorney so that the absolute cover of mediation confidentiality remains intact or do they use a mediator who happens to be an attorney thereby –depending on the outcome of the mediation- possibly opening themselves (as well as the mediator!) up to possible disciplinary action and civil suits?

This proposal  raises contradictions; suppose a non-attorney is the mediator at a session in which the parties are represented by attorneys. Does the absolute cover of mediation confidentiality apply since the  mediator is NOT an attorney ? Or, does the rule change so that the mediator is still protected but the attorneys for the parties are not? Suppose no one in the mediation is an attorney? Does this mean the strict rules of mediation confidentiality will apply without exception? Or, suppose  only one of the parties is represented by an attorney and the other party is not? Suppose the mediator is or is NOT an attorney? What rule or exception applies then?  The rules will definitely vary depending upon who is attending the mediation!

With this new option available, will parties tend to use one category of these mediators over another? Will parties attend mediations without counsel so that mediation confidentiality will be maintained?   I do not know.

The proposal also raises an oxymoron. While it says that that the proposed new exception will “…only apply to alleged misconduct in a professional capacity”, most mediators who are also attorneys do not consider themselves practicing law while mediating. In fact, as a neutral, they should not be giving legal advice! As the California Rules of Professional Conduct involve mostly actions taken in the practice of law (except for moral turpitude) – what disciplinary violation  might be at issue? Breach of fiduciary duty? To whom? Lack of competency? To whom? Representing adverse interests? It is far from clear what the CLRC has in mind!

The CLRC has been studying this matter for three years. Throughout that period, it has been my impression (perhaps wrongly!) that it was studying exceptions to mediation confidentiality only with respect to attorneys representing parties and not to the mediator. Both the initial draft bill introduced into the legislature in 2012 and then its amendment ( See, AB 2025 as amended)) referring the matter to the CLRC seemed to indicate that it was the attorneys representing the parties that were to be the focus.

Evidently, I was wrong. For those of you who hold the same impression I did, I urge you to send your comments to Barbara Gaal at bgaal@clrc.ca.gov. The next meeting of the commission is October 8, 2015 in Davis, California.

… 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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