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A Further Update to Mediation Confidentiality in California

by Phyllis Pollack
October 2015

From Phyllis Pollack's Blog

Phyllis  Pollack

Several weeks ago, I posted a blog about the proposals voted on by the California Law Revision Commission to make certain changes to mediation confidentiality in California. At its August 8, 2015 meeting, the Commission proposed creating  several exceptions to mediation confidentiality that would allow; (1) Both lawyers representing clients and attorney mediators to be sued for malpractice and/or misconduct; (2) Both lawyers representing clients and attorney mediators to be subject to discipline by the State Bar for misconduct; (3) The use of an in camera  screening process; (4)  All relevant  evidence to be admitted both to prove and disprove a claim; (5) Misconduct both within and outside of mediation to be at issue; and (6)  Conduct in a professional capacity only to be at issue.

The Commission rejected the use of a cooling off period after a settlement agreement is signed at mediation (such as is used in certain employment disputes) and also rejected the ability of the parties to unwind the agreement where misconduct is alleged.

The Commission did not decide whether these exceptions should apply while the dispute is still pending.

Needless to say, many, many , many comments were submitted to the Commission in the weeks following its vote. Most of them opposed creating any exception to mediation confidentiality. Others objected to the disparate treatment of mediators who happen to be attorneys and mediators who are not attorneys. While the former could be subject to discipline and civil litigation, the latter were entirely omitted from any exceptions and thus, still, completely under the umbrella of the mediation   confidentiality statutes. Still others raised other very thoughtful and insightful points.  All of these comments may be found at: (1) Memo 2015-46; (http://www.clrc.ca.gov/pub/2015/MM15-46.pdf); (2)Memo 2015-45 (http://www.clrc.ca.gov/pub/2015/MM15-45.pdf); (3) Memo 2015-46 Supp. 1 (http://www.clrc.ca.gov/pub/2015/MM15-46s1.pdf);  (4) Memo 2015-45- Supp 1 (http://www.clrc.ca.gov/pub/2015/MM15-45s1.pdf); and  (5) Memo 2015-46- Supp 2 (http://www.clrc.ca.gov/pub/2015/MM15-46s2.pdf)

As a result of this barrage of comments, the Commission back tracked at its October 8, 2015 meeting. It decided to exclude attorney mediators from its recommendations such that any exception to mediation confidentiality will apply to attorneys representing clients only and not to attorneys who are the mediators. The Commission recognized mediators have long had quasi-judicial immunity and further that under Evidence Code Section 703.5 mediators are incompetent to testify. Rather than undertake a mammoth revision of these long standing propositions, the Commission agreed to leave them in place.

The Commission also voted that any exception to mediation confidentiality shall not apply to any proceeding to enforce the settlement agreement. Thus, a litigant who attempts to argue that she was coerced into settling, was under duress et cetera will not be able to raise this argument in response to a motion to enforce the settlement agreement.

The votes taken at this meeting were solely for the purpose of directing the Staff Counsel to begin to draft legislation. This process still has a LONG way to go. The Staff Counsel must draft the legislation, the Commission must  draft a comment on each section, a narrative explanation to the proposal must be also drafted, the entire package so to speak must then be made public for comment for  2-3 months, then changes may be made based on the those comments…. And then it is sent to the California legislature where it goes through that process.  Without doubt, any change to California’s mediation confidentiality statutes is at least 1-2 years away.

For complete information on this topic, visit the California Law Revision  Commission webpage and look for Study K-402-  “Mediation Confidentiality and Attorney Malpractice and Other Misconduct” ; http://www.clrc.ca.gov/K402.html

The next meeting of the California Law Review Commission is on Thursday, December 10, 2015 from 10:00 a.m. to 4:00 p.m., in Los Angeles, Ca. Stay tuned for what happens next!

… 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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