Negotiation News: Volume 5, Issue 2
Welcome back to Judge Mediation Negotiation News! Spring is certainly in the air, and for many (myself included) it’s the best time of the year. Longer days, warmer weather, great sports and the advent of summer all make for a time of year well worth getting out and enjoying.
Will All Things Remain Confidential In Mediation?
- JUST WHERE IS MEDIATION CONFIDENTIALITY HEADED?
There are some significant changes under consideration on the issue of confidentiality of attorney misconduct during mediation.
For the better part of a year, the California Law Revision Committee (CLRC) has been considering an exception to mediation confidentiality to address attorney misconduct that occurs during mediation.
The following are some of the key points in the CLRC’s Memorandum 2016-18, Study K-402 (April 4, 2016):
- The exception should “only apply to alleged misconduct of an attorney acting as an advocate, not to alleged misconduct of an attorney-mediator.”
- The exception “should only apply to evidence of misconduct that allegedly occurred in the context of a mediation.”
- The exception “should only apply to alleged misconduct in a professional capacity.”
- The exception should apply in a State Bar disciplinary proceeding and in a legal malpractice case. It should not apply in a proceeding relating to enforcement of a mediated settlement agreement.
- The exception should “apply to all types of mediation evidence,” not just to a private attorney-client discussion or other particular type of mediation communication.
- The exception should expressly state that it is not intended to affect the extent to which a mediator is, or is not, immune from liability under existing law.
- The exception should only apply to evidence from a mediation that commences after the exception becomes operative.
- The existing provision that makes a mediator incompetent to testify in most civil proceedings (Evidence Code Section 703.5) should remain as is.
A number of questions arise as to the ramifications of such an exception:
Presumably, if a client were to be able to prove that an attorney gave confidential advice or otherwise engaged in misconduct during a mediation that subsequently caused harm, an action could be stated.
But what then? If the evidence consisted of attorney-client communications during the session, only the attorney and client could testify about it. But as we all know, settlements happen for all kinds of reasons, and such a case would be hamstrung by mostly “he said/she said” evidence.
The proposed changes, however, allow evidence far beyond attorney-client communications. It is important to remember that the Court of Appeal in the Cassel case initially held that evidence of attorney misconduct or malpractice that consisted of attorney-client communications (and actions) only should be allowed as an exception to the mediation confidentiality statutes. Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, LLP), 174 Cal. App. 4th 152 (2009) However, the California Supreme Court held that no evidence of any mediation communications or actions taken during a mediation short of “criminal misconduct” would be admissible since the statutes clearly established blanket confidentiality. Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, LLP), (2011) 51 Cal. 4th 113 (Justice Chin, concurring at p. 138.)
Other issues that come to mind:
- Mediations often “begin” before parties and counsel meet for an actual session. Where there are pre-session communications, and meetings and other exchanges in advance of the actual “session”, what then is a communication during mediation?
- Things can happen fast and furious during a mediation and the proposed changes may well have a chilling effect on participation in mediation by attorneys. More importantly, might not evidence of a client’s communication during a mediation cause a client to be less than forthright?
- Would any confidentiality agreements that explicitly waive the confidentiality exception statute(s) be invalid as improper client waivers of professional misconduct?
- Though mediators would not be subject to liability for “misconduct”, if “all types of mediation evidence” is allowed, wouldn’t mediators be well advised to sharpen their witness skills for deposition?
It’s important to remember that the CLRC recommendations are simply tentative recommendations and have far to go before being considered by the Legislature.
Members of the mediation community met with CLRC in mid-April 2016 in Sacramento. Discussions ultimately involved the possibility of adopting the Court of Appeal ruling in Cassel of limiting an exception only to attorney-client matters, and not “all types of mediation evidence.” Whether even that exception is recommended to the Legislature remains uncertain at this point.
I’ll keep you posted as things progress . . .
- Enhanced Archives
On this website, you can go to the Negotiation News page, which contains a complete index to the archives of Negotiation News. If you need to look up something that was previously covered, it’s all there. I hope this will help you.
As always, when booking your mediation, please direct me to the website of your charity and I will donate part of the fees in your name.
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].