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Ca. Law Revision Commission Tentative Recommendation ‘Bad News’ for Mediation Confidentiality

On the California Law Revision Commission’s (CLRC) agenda for December 1, 2017, Agenda Item No. 6, is the “relationship between mediation confidentiality and attorney malpractice and other misconduct.” The CLRC’s June 2017 Tentative Recommendation, essentially to destroy mediation confidentiality without good cause shown, is very bad news for the widespread beneficiaries of mediation, including the public interest.

In an excellent article posted on the internet, mediator Fred Carr, in an article subtitled, “Is the Law Revision Committee throwing the baby out with the bathwater” or, “If it isn’t broken, don’t fix it,” reviews the background and scope of the CLRC’s study and “tentative” conclusions. As recounted by Carr, and evident from the public record, despite (i)a paucity of evidence of a problem; (ii) abundant evidence that disputant participants highly value the mediation process, and; (iii) mediation process participants’ overwhelming assessment that confidentiality is essential to a full exploration of settlement potential, nonetheless the CLRC’s tentative recommendation to the California Legislature is to amend the California Evidence Code to provide a “supposedly” narrow exception to mediation confidentiality, to wit, to permit discovery of all mediation communications in any of three types of legal proceedings concerning alleged misconduct of an attorney in representing a client (not serving as a mediator): (1) State Bar disciplinary proceedings; (2) claims for damages due to legal malpractice; (3) an attorney-client fee dispute.

For example, it has been argued that the amendment would subject mediators to subpoenae duces tecum demanding production of documents received by the mediator from the mediating parties. See 9/27/17 post by Lee L. Blackman to Southern California Mediation website. See also, mediator Phyllis Pollack’s review of the CLRC’s examination of the matter since 2013, on the same website. https://www.scmediation.org/category/mediation-confidentiality/.

As a participant in mediation of employment disputes for 20+ years and a practicing mediator of employment disputes for 20 years, I can personally attest, with certainty, that mediation works because of confidentiality, which I personally explain to parties as the “opposite” of a Miranda warning and equivalent to “what happens in Vegas, stays in Vegas.” Unfettered exchange of information is the sine qua non to a successful mediation process. Notwithstanding the vaunted “narrowness” of the proposed evidentiary exceptions, as a practical matter, these exceptions would fatally swallow, or engulf, mediation confidentiality, hence, doom mediation itself.

Absolute confidentiality is the grease that makes the mediation wheels go round. To what or whom the CLRC is sacrificing the mediation “lamb” is puzzling. Noting the overwhelming opposition to the CLRC Tentative Recommendation (23 organizations and 439 individuals to date and only 11-16 organizations and persons in favor, to date) and the fact that CLRC staff itself courageously characterized public comment received as of 9/1/17 as “decidedly negative” and suggested “careful reexamination” [Staff Memorandum 2017-52], mediator Pollack suggests that perhaps the “sunk cost fallacy” is at work here.

Although requested by September 1st, comments may still be sent to the CLRC c/o Chief Deputy Counsel Barbara Gaal: bgaal@clrc.ca.gov.