On February 2, 2017, the California Law Revision Commission (CLRC) held its regular meeting in which it once again discussed mediation confidentiality. While the Commissioners seemingly did not make any great strides, at the same time, they did.

I make this contradictory statement because at its September 2016 meeting, the Commissioners asked Staff Counsel to revisit additional options that might complement or supplement their decisions to date. At the December meeting, the Commissioners ran out of time to discuss this memo (Memo 2016 – 59) and so scheduled it for its February meeting.

Over the course of about three and a half hours, the Commissioners reviewed and discussed different concepts or reforms to determine if any of them should be included in its recommendations to the Legislature. These additional options included requiring some form of prior disclosure (aka “informed consent”) to the party participants either in an attorney client retainer agreement or by some other means  outlining the consequences of mediation confidentiality, whether  some or all of the mediation participants  should be allowed to sign a waiver of mediation confidentiality opting out of it (i.e., contractual waiver of mediation confidentiality), whether some sort of ‘ cooling off “ period should be provided in which the parties have time to think about the settlement agreement before it becomes final or have time to consult with third parties before it becomes final, whether some sort of ‘voir dire” should be conducted at the conclusion of the mediation to insure that the settlement agreed upon by the parties is “knowingly and voluntary”, and whether there should be a recommendation that the Legislature require the State Bar to keep statistics on the number of disciplinary complaints arising out of what occurred or failed to occur during a mediation.

In addition, Ron Kelly’s “Alternative Compromise Package” which he dubbed as a “mediator’s proposal” was discussed by the Commissioners. This suggestion included having some form of prior disclosure, some means of addressing an alleged oral breach of contract when the fee is adjusted during the mediation and then “reneged on” and then to implement a reversal of the California Supreme Court’s decision in Cassel v Superior Court (2011) 51 Cal 4th 113, 119 Cal. Rptr 3d 437, by codifying the appellate court decision which held that the conversations occurring prior to the mediation were NOT covered by mediation confidentiality.

More than once during these discussions, the Commissioners raised the point that one or more of these concepts had been previously discussed by them during the three years that this study has been ongoing and rejected. So—they saw no real need to revisit these issues much less change their collective minds about them.

In the end, the Commission decided NOT to include any further options or alternatives, supplements, or complements to the recommendations they have thus far decided upon. They rejected all of the options, or proposals suggested in Memo 2016-59, opting instead to simply go with the recommendations previously agreed upon.

However, at the end of the meeting, representatives from the Public Employment Relations Board (PERS) raised the issue that while Evidence Code Section 703.5 provides that a mediator is immune from testifying, it is not clear whether it also protects the mediator’s notes, briefs and other documents in her file. Could a third party issue a valid and enforceable subpoena for their production? After some discussion, it was noted that one exception in this Evidence Code section to a mediator’s incompetency to testify arises in a State Bar disciplinary proceeding: a mediator is indeed competent to testify in such a proceeding.  So, a suggestion was made to revise the proposed statute (Evidence Code Section 1120.5) to provide that for purposes of a legal malpractice action, the files, notes, briefs and documents of a mediator are also immune from production. This would avoid creating any inconsistency between this new statute and the exceptions set out in Evidence Code Section 703.5.  Staff Counsel will provide suggested draft language for the next meeting to be held in Sacramento, California on April l3, 2017.

As always I urge those who can attend to do so. Or, to submit a public comment to Barbara S. Gaal, Esq., Chief Deputy Counsel, [email protected] or Barbara S. Gaal, Esq., California Law Revision Commission, 4000 Middlefield Road, Suite D2, Palo Alto, Ca 94303

Having agreed upon a recommendation with proposed draft legislation, and rejecting all proposed complements, alternatives, supplements etc., it appears that the Commission has only some tweaking to do to the proposed legislation, finalize its Comments to that legislation together with a narrative and then put it out for comments for 60-90 days. Once those comments are received, the CLRC will make any changes it deems necessary and then pass it on to the legislature where it begins that process. So, while the exception to mediation confidentiality has a long way to go before it becomes law in California, I sense that the initial work of the CLRC is just about concluded.

…. Just something to think about.

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