Copyright Ron Kelly 2017, Permission granted to republish.
Mediation confidentiality in California will end on January 1, 2019…unless YOU take action now. The mediator’s new opening statement will need to be:
Anything you say in mediation you may be subpoenaed to repeat under oath if any of the other parties later complains against their lawyer.
You may also have to turn over any confidential briefs or documents you create in mediation, and any texts or emails you send.
Do YOU care about our current right to choose confidential mediation? Do YOU care that very powerful forces are planning to take this away?
On average, for more that a quarter century I’ve donated several hours a week to creating, strengthening, and defending our current legal protections for mediation confidentiality. Now I’m asking YOU to dedicate just one day of YOUR time to save them. Please –
1. Call your State Senator and State Assemblymember. Ask the name of their aide in charge of Judiciary Committee matters. Ask their help. Tell your story. Ask them to tell the Law Revision Commission they oppose its pending bill to take away your right to choose a confidential mediation (Study K-402). Find your legislators’ names, addresses, and phone numbers here <http://assembly.ca.gov/assemblymembers> and here <http://senate.ca.gov/senators>.
2. Follow up in writing. Mail each one a hard copy letter. Emails to them are not kept as public record. Hard copy letters are.
3. Work to get any organization that you’re a member of to write in opposition to the Judiciary Committee Chairs in the Assembly and Senate. The analyses that legislators get normally only list organizations, not individuals in opposition. Forward this to anyone who believes our current right to choose confidential mediation serves the public interest.
4. PLEASE send a copy of your letter (email is okay for them) to the California Law Revision Commission at <email@example.com>. Please email me a copy at <firstname.lastname@example.org>. That way I can ensure copies are provided to all members of the relevant legislative committees and commissions.
What happened? A majority on the current California Law Revision Commission is planning to recommend removing our current mediation confidentiality protections by adding a new Section 1120.5 to the Evidence Code. You can read their 156-page Tentative Recommendation here <http://www.clrc.ca.gov/pub/Misc-Report/TR-K402.pdf>. The actual proposed bill starts at page 145. A majority of the Commissioners aim to take away your right to choose a confidential mediation. They think it’s more important that you be able to use mediation communications to later claim your own lawyer violated professional standards in your mediation, and that your lawyer be able to use them to defeat your claim.
What it boils down to is this. The new section will remove our current legal protections in order to allow both a dissatisfied client, and her or his accused attorney, to later a) subpoena all opposing parties to produce their confidential mediation briefs, offers, admissions, potential resolutions and other electronic communications they sent to the mediator, and to b) subpoena all opposing parties to repeat later under oath what they and the mediator said in mediation, if the evidence is relevant to their later malpractice claims or defenses. The central problem is, as one former presiding judge put it, “Some judges will let nothing in. Some will let everything in. Some will end up in between. There’s no way you’ll know in advance.” Who’s going to be candid in mediation if we lose our right to know we’re talking off the record?
The Commission has not submitted their bill to the Legislature yet. They aim to submit it soon. By the time it gets a bill number, though, it may be too late to stop it. The Commission’s recommendations nearly always become law eventually. Sadly, their proposal is also supported by the lobbying power of the Conference of California Bar Associations – even though the Conference voted to approve its Resolution 10-06-2011 supporting only a much more limited exception. That was to make admissible mediation “communications directly between the client and his or her attorney, only“.
It’s going to take all of us working hard to keep our current right to choose confidential mediation.
If you want to read the most balanced discussion of the issue I’ve seen, please read Lisa Zonder’s Daily Journal article here <http://www.clrc.ca.gov/pub/2017/MM17-20.pdf>, starting at page EX4. The letter to the Commission just before it on page EX3 also provides a good model for a letter directly to the Commission if you choose to write one.
Maxine Baker-Jackson talks about the challenge of being an intermediary and preventing escalation by being non-bias and non-partial.By Maxine Baker-Jackson