The CLRC’s Tentative Recommendation on Mediation Confidentiality!

PGP Mediation Blog by Phyllis G. 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). If passed by the legislature, new Evidence Code section 1120.5 would allow parties to pursue claims against counsel for “legal malpractice” occurring in a mediation context. All public comments should be received by the Commission no later than September 1, 2017.

The 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:

… 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 >