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Looming Changes to Mediation Confidentiality

By Paul Fisher1

The California Law Revision Commission is drafting a recommendation to the California Legislature to enact an exception to mediation confidentiality. The proposed new exception is designed to hold attorneys accountable for alleged misconduct during the mediation process, while also allowing attorneys to effectively rebut meritless misconduct claims.

The following is a synopsis of the Commission’s tentative recommendation: The most recent California Supreme Court decision on mediation confidentiality is Cassel v. Superior Court, which prompted the Commission’s current study. The plaintiff in Cassel sued his attorneys for malpractice, breach of fiduciary duty, fraud and breach of contract. He claimed his attorneys, during mediation caucuses, persuaded him to settle for less than the case was worth. In his opinion, Justice Chin reluctantly concurred with the majority and urged the Legislature to reconsider the mediation confidentiality statutory scheme.

The Commission tentatively recommends creating a new exception to Evidence Code Section 1119. The Commission recognizes that the policy interests underlying the mediation confidentiality statutes are significant, warrant protection and a careful balancing of the competing interests. The exception would therefore be narrow so as to help protect the confidentiality expectations of mediation participants.

The exception would apply only in a state bar disciplinary proceeding, a claim for damages due to legal malpractice or an attorney-client fee dispute. The exception would only apply to misconduct that allegedly occurred in the context of a mediation or a mediation consultation. This situation is problematic under existing law because much, if not all, of the relevant evidence for both sides might fall within the scope of Section 1119 and thus be unavailable in resolving whether misconduct actually occurred. The exception would extend to alleged misconduct at any stage of the mediation process: during a mediation consultation, a face-to-face mediation session with the mediator and all parties present, a private caucus with or without the mediator, a mediation brief, a mediation-related phone call or any other mediation-related activity. The determinative factor is whether the misconduct allegedly occurred in a mediation context, not the time and date of the alleged misconduct.

To be admissible or subject to disclosure, mediation evidence must be relevant and must satisfy the other requirements stated in the exception. This would be a stricter standard for disclosure than the one governing a routine discovery request in order to safeguard the interests underlying mediation confidentiality.

The proposed new exception would expressly permit a court to “use a sealing order, protective order, redaction requirement, in camera hearing or a similar judicial technique to prevent public disclosure of mediation evidence.” The use of such procedural mechanisms would help to preserve the confidentiality expectations of mediation participants.

Additional features: The exception would apply across-the-board; there would not be any carve outs for particular types of cases. Existing law governing mediator immunity would remain unchanged. To avoid disrupting confidentiality expectations of mediation participants, the new exception would not apply retroactively.

The Commission invites comments by September 1, 2017, to Barbara Gaal, Chief Deputy Counsel California Law Revision Commission 4000 Middlefield Road, Room D-2 Palo Alto, CA 94303-4739 650-494-1335.

  1. Copyright 2017 by Paul Fisher