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<xTITLE>California Confidentiality Will End Unless You Take Action Now!</xTITLE>

California Confidentiality Will End Unless You Take Action Now!

by Ron Kelly
September 2015 Ron Kelly

California Confidentiality Will End Unless You Take Action Now!

Are you willing to invest just a few minutes to help save mediation confidentiality?
PLEASE forward this alert.

What Happened?

On August 7, 2015 the California Law Revision Commission voted 4-1 to draft a recommendation removing our current protections. Nearly all its recommendations become law.

The legislation will remove current protections whenever a mediation party alleges misconduct by their lawyer advocate or lawyer mediator.

3 Ways This Law Will Destroy Mediation and Swamp Our Overburdened Courts

Predictability Destroyed - Candor Dangerous. Our current predictable protections will disappear with a mere allegation of misconduct. Few will risk being candid knowing every mediation statement and document can be discovered and become admissible evidence.

Follow-On Subpoenas and Depositions for All Participants. Under this law, anyone suing a lawyer and also the accused lawyer can depose all mediation participants and subpoena their mediation documents searching for relevant evidence.

Access to Justice Threatened. Our budget-starved courts rely on confidential mediation to resolve a large part of their pending civil cases. The added court workload of unresolved cases and the new load of follow-on mediation lawsuits and discovery fights will further clog many struggling civil divisions.

Commission Chair's Warning

The Chair argued against the direction the Commision voted to take, and warned:

"I've thought about this a very long time...I am persuaded that our courts would be devastated...every unsatisfied party will try to craft what happened at the mediation to fit that exception, try to unwind the mediation, try to disclose something confidential...I see the caseload of the courts increasing..." (emphasis added)

What Can You Do?

PLEASE email the Law Revision Commission now at bgaal(at) while there is still time to reverse the decision. Tell them they're going the wrong direction. Please cc me at ronkelly(at), and please forward this alert to anyone who uses or conducts mediation. They should know about this vote before it's too late.

Please copy and send the brief statement below - or better, write your own. Please also urge any group you're in to adopt and convey a similar opposition statement as soon as possible.

Thank you,
Ron Kelly

** ** ** **
California Law Revision Commission
c/o Ms. Barbara Gaal, Chief Deputy Counsel

Re Study K-402

I oppose the Commission's August 7th decision to draft recommended legislation removing our current confidentiality protections when a mediation participant alleges lawyer misconduct. I will oppose this legislation if it goes to the Legislature and will urge organizations of which I'm a member to oppose it.

For thirty years our current right to choose confidential mediation and also to opt out of it has served the people and courts of California extremely well. Removing this right is a very radical change which should require solid evidence establishing a need. Dozens of alternative solutions have been suggested to the Commission to address the alleged problem without removing our confidentiality protections. I request you pursue these instead.

I urge you not to turn your back on the Commission's own 1996 statement recommending our current statutory protections be enacted - "All persons attending a mediation, parties as well as nonparties, should be able to speak frankly, without fear of having their words turned against them."


Mediating since 1970 and arbitrating since 1986, Ron has initiated and guided enactment of dozens of key sections of California law protecting the integrity of ADR. He's a founder of two of California's main ADR professional organizations. He's been honored with eight major awards for his pioneering work in building the field, including Peacemaker of the Year in California and Honored Instructor at Berkeley. As an arbitrator and mediator, Ron's helped thousands of lawyers, business professionals and government agencies settle their disputes quickly and fairly. Ron has trained thousands of lawyers, judges, government officials, and business professionals on four continents, and his training materials are licensed and used around the world in numerous languages. Judges in most Bay Area superior courts have chosen to enroll in his trainings. He regularly trains mediators and arbitrators through the Bar Association of San Francisco, other Bay Area bar associations, and through UC Berkeley's CLE program.

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