An Update on Prior Disclosure

PGP Mediation Blog by Phyllis G. Pollack

As some of you may recall, the California Law Revision Commission issued its Tentative Recommendation late last year to create an exception to mediation confidentiality. However, the proposed statute could not find a sponsor and so never got introduced into the legislature.

Instead, Senator Wieckowski introduced SB 954 on January 30, 2018 which would add new Evidence Code Section 1129 requiring that prior to a mediation or mediation consultation, an attorney representing a client provide the client with a written disclosure containing the restrictions imposed by mediation confidentiality and have the client sign an acknowledgment that she has read and understands such restrictions.

Since then, there has been much discussion among the various stakeholders on different aspects of the proposed statute. Senator Wieckowski intends to introduce an amended bill (SB954Ame041918) on May 1, 2018 which not only adds Evidence Code Section 1129 but also amends other statutes so that they will be in sync with the proposed new statute.

First, the proposed bill amends subsection (j) to Business and Professions Code Section 6068 requiring attorneys to comply not only with the requirements of Business and Professions Code 6002.1 which they now must do, but now also with Evidence Code section 1129.

Second, the amended bill would add a new subpart to Evidence Code section 1122. That section now provides that mediation communications may be admissible (1) if all parties and the mediator agree or (2) if fewer than all parties and the mediator agree and the communication does not disclose anything said or done or any admission made during the mediation.

The proposed new subpart- (3)- would provide:

       (3) The communication, document, or writing is to be used in an attorney disciplinary proceeding to establish that an attorney did not comply with the requirements described in Section 1129, and does not disclose anything said or done or any admission made in the course of the mediation.  

And, as noted proposed new Evidence Code section 1129 would provide:   

SECTION 1.

            SEC. 3.   Section 1129 is added to the Evidence Code, to read:

1129. Before Except in the case of a class action, before engaging in a mediation or a mediation consultation, an attorney representing a client participating in the mediation or a mediation consultation shall inform his or her client of provide his or her client a written disclosure containing the confidentiality restrictions as described in a Section 1119, and obtain the client’s written consent to the restrictions, in a form acknowledging that the client is informed of the restrictions and understands them. a written acknowledgement signed by the client stating that he or she has read and understands the confidentiality restrictions. Failure to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.

While the stakeholders have discussed the proposed language for the written disclosure and acknowledgment, Senator Wieckowski has indicated that he would prefer waiting until the bill gets to the Assembly before deciding whether (1) specific language should be part of the statute; (2) some minimum “safe harbor” language should be included; (3) refer the matter to the Judicial Council for drafting the language; or (4) some other alternative.

This proposed amended bill is to be taken up by the Senate Judiciary Committee on May 8, 2018 which hopefully will adopt and approve it.

If you have any comments, please contact the Senator’s aide- April Bird at [email protected].

… Just something to think about. 

                       

Phyllis Pollack

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… MORE >