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Commenting on Tentative Recommendation

by Phyllis Pollack
August 2017

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

On June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create an exception to mediation confidentiality (Study K-402). All public comments should be received by the Commission no later than September 1, 2017.

The CLRC just issued its Agenda for its September 28, 2017 meeting at the State Capitol Building in Sacramento, California. Although its meeting starts at 10:00 a.m., at 1:30p.m., it will take up and discuss the public comments it has received to its Tentative Recommendation and will analyze those comments as well. In the coming weeks prior to the meeting, it will post both those comments and staff counsel’s analysis as memoranda on its website : http://www.clrc.ca.gov/K402.html 

As a reminder, the CLRC’s Tentative Recommendations include:

1. The exception would NOT apply in resolving a claim relating to the enforcement or rescission of a mediated settlement agreement or in a suit for specific performance;

2. Creating an exception to mediation confidentiality that would apply only in State Bar Disciplinary Proceeding, a Claim for Damages Due to Legal Malpractice, or an Attorney-Client Fee Dispute;

3. The exception would apply only to attorney misconduct in a professional capacity, that is, “when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation-that is, an obligation the attorney has by virtue of being an attorney- in the course of providing professional services.” (Id. at 135);

4. The exception would only apply to alleged misconduct in representing a client, not in serving as a mediator;

5. The exception would apply only to alleged misconduct that occurs in a mediation context. A “mediation context” includes any alleged misconduct that may occur at any stage of the mediation process, such as the during a mediation consultation, a pre-mediation telephone call, a mediation brief, a joint session, a private caucus with or without the mediator present, a mediation related telephone call et cetera. The issue is whether it relates to the mediation, and not the time or date of the alleged misconduct;

6. A mediator generally could not testify or provide documentary evidence pursuant to the exception. That is, Evidence Code section 703.5 remains in effect and a provision will be added to the proposed legislation to include a mediator’s written evidence as incompetent as well;

7. A litigant could not go to another source to obtain or learn the content of a mediator’s writing. Thus, a litigant could not go to a third-party source such as an email provider to obtain an e mail string which includes the mediator’s email messages containing substantive content unless that portion of the e mail string can be effectively redacted to protect the mediator’s substantive comments;

8. The same standard of “relevancy” would govern both the admissibility and discoverability of evidence of the alleged misconduct;

9. The exception would limit the extent of disclosure to “…only the portion of the communication necessary for application of the exception”;

10. A court could use judicial tools such as sealing records, in camera proceedings, protective orders and redaction to prevent public disclosure of mediation evidence;

11. Mediation participants would receive notice that a suit has been filed and thus be able to take steps to prevent improper disclosure of mediation communications;

12. The exception would apply even handedly to the evidence- both to prove and disapprove a claim of alleged malpractice;

13. The exception would apply to all types of evidence; not just to communications between the attorney and client during a private caucus;

14. The exception will apply to every type of mediation in all fields of law; no exceptions such as for family law mediation or mediations conducted under the Dispute Resolution Programs Act will be made;

15. The proposed legislation is to have no effect on the extent to which a mediator is or is not immune from liability under existing law;

16. The exception has no provision for the issuance of sanctions by a court against a party who brings an unsuccessful malpractice action; and

17. The exception will apply only prospectively- to all mediations occurring after its operative date.
(See, Tentative Recommendation at pages 133-141.)

I urge everyone to peruse, if not read, the full Tentative Recommendation and to provide comments to the California Law Revision Commission, 4000 Middlefield Road, Room D-2, Palo Alto, Cal 94303-4739, telephone: 650-494-1335, website: commission@clrc.ca.gov before September 1, 2017… and to attend the meeting if possible.

… 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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