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The California Law Revision Commission’s Latest Decisions Re: Mediation Confidentiality

by Phyllis Pollack
June 2016

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

On June 1, 2016, the California Law Revision Commission (CLRC) held its meeting in Sacramento and, as in the past, took up mediation confidentiality as the last item on its agenda. It spent approximately 2 hours discussing the topic.

Prior to the meeting, Staff Counsel issued 4 memoranda on the topic: Memorandum 2016-27 discussing Preliminary In Camera Filtering; Memorandum 2016-28 discussing Existing In Camera Approaches; Memorandum 2016-29- discussing the Scope of Public Disclosure, and Memorandum 2016-30 setting out the most recent Public Comments.  ( These memoranda and other materials may be found athttp://www.clrc.ca.gov/K402.html )

At the prior CLRC meeting, Staff Counsel was requested to “investigate and report on whether there is any constitutionally permissible method of in camera screening or quasi –screening that a judicial officer could use as a filter at the inception of a legal malpractice case based on mediation misconduct.” (Memorandum 2016-27 at 1.)  Thus, it was Memorandum 2016-27 that took up much of the discussion as it sets out 5 different options that could be used as a preliminary screening (or gatekeeping) device.

After some discussion, the CLRC appeared interested in learning more about Option 3 which involves using an Early Neutral Evaluation Conference or a pre-lawsuit, pre-fling mediation as a means to try to resolve the alleged malpractice claim confidentially. That is, the attempt to resolve the alleged malpractice claim would be by means of a confidential mediation held prior to the filing of suit so that there would be “an exception to the exception.”

After more discussion, Commissioner King suggested a sixth option; using a procedure similar to that authorized in Civil Code Section 1714. 10 involving causes of action against an attorney for civil conspiracy with a client. That section requires a court order including a determination that “… the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action” (Id.) before the pleading can be filed and the matter can proceed.

The Commission voted to have Staff Counsel look into these two options in more detail and report back at its next meeting.

The CLRC also discussed Memorandum 2016-29 involving the scope of public disclosure. That memorandum suggested that the scope could be that;

  1. There are no special restrictions on public access, or
  2. Only restrict public access with regard to a determination of admissibility, or
  3. Require or permit a court to more broadly restrict public access. (Id. at 1-4.)

In light of the CLRC’s decision to have a gatekeeper preliminary hearing which hearing might also possibly be used to address evidentiary issues, the Commissioners did not see the need for a second in camera review proceeding (It also believed a second hearing would be a burden on both the parties and the courts.)  Thus, they voted for option 1- to have no special restrictions on public access.

In response, a member of the audience, Rachel Ehrlich, suggested that the issue of notice (and more particularly, the lack thereof to mediation participants other than the parties involved in the potential lawsuit) may be a concern. If there is to be only one in camera proceeding – will all participants be given notice so that they can protect any evidentiary rights they may have, or is notice to be given only to the potential plaintiff (former client) and potential defendant (former attorney)?

Noting this to be a valid point, the CLRC recognized that an issue for future discussion is what is the purpose of the gatekeeper in camera hearing: to see if the potential lawsuit has a probability of success on the merits? To decide admissibility of evidence at trial? Or both?

Finally, it was noted that there seems to be a lack of empirical evidence on the extent of alleged malpractice during mediation. While there have been claims of attorney misconduct made to the State Bar of California, it appears that the State Bar has not yet advised, to what extent, if any, such claims arise out of mediation. Thus, it was suggested that staff counsel submit a memorandum of possible areas for discussion with the State Bar with the view that perhaps a representative of the State bar would be invited to a future meeting of the CLRC to discuss these areas of concern.

The next meeting of the CLRC is at 10:00 a.m. to 4:00 p.m. on July 22, 2016 in Los Angeles, California. I urge everyone to attend.

… 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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