An Update To Proposed Mediation Regulation

//An Update To Proposed Mediation Regulation

On August 3, 2012, I posted a blog about Resolution SR-05-01-2012 that was proposed to the California Conference of Bar Associations by Bay Area Lawyers For Individual Freedom. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the Conference at California’s Annual State Bar Convention would not only change the definition of “mediator” in California but also implement mediator regulation by the State Bar of California.

As is its procedure, the Resolutions Committee of the California Conference of Bar Associations reviewed and analyzed this resolution. In its report, it has disapproved it, mainly because of its internal inconsistencies. Its report states in full:

RESOLUTION 05-01-2012
DIGEST
Use and Regulation of Mediators and Mediation Providers
Amends Code of Civil Procedure sections 1775 through 1775.15 and adds Business and Professions Code sections 6240 through 6245 to require that all courts refer cases to alternative dispute resolution programs and to establish minimum qualifications for mediators.
RESOLUTIONS COMMITTEE RECOMMENDATION
DISAPPROVE
History:
Similar to 03-03-08, which was disapproved, and 13-04-2009, which was withdrawn.
Reasons:

This resolution amends Code of Civil Procedure sections 1775 through 1775.15 and adds Business and Professions Code sections 6240 through 6245 to require that all courts refer cases to alternative dispute resolution programs and to establish minimum qualifications for mediators. This resolution should be disapproved because the proposed definitions, minimum qualifications and disciplinary procedures are internally inconsistent and inconsistent with existing law.

The first part of this resolution, to expand and encourage the use of alternative dispute resolution programs, could very well benefit California’s judicial system and the growing need to find less costly and less time-consuming ways to resolve disputes.

However, the second part of this resolution, adding Business and Professions Code sections 6240-6245, is internally inconsistent. The new section 6243, subdivision (a)(2), establishes minimum qualifications for mediators, which require that for a person to become a “mediator”, that person must have mediated “20 cases as a solo mediator.” With this requirement a person can’t become a mediator unless they mediate 20 cases, but they can’t mediate 20 cases unless they’re already qualified as a mediator. Also, section 6241, subdivision (b)(1), defines a “mediator” to include “any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.” This definition necessarily requires that even an assistant satisfy those minimum qualifications. Although this is probably not the intent of the resolution, as drafted it requires virtually everyone assisting with a mediation to meet the minimum qualifications.

Further, section 6241 limits the definition of a “mediator” to those persons who receive compensation for conducting a mediation. However, if the purpose of these new sections is to protect the public from unscrupulous “mediators,” then it should apply to all persons conducting mediations, not just those who receive compensation. An unpaid mediator can coerce a party into an unfair settlement just as easily as a paid mediator can.

Finally, while the idea of having a disciplinary process in place for ensuring that mediators comply with their professional obligations is a noble idea, as proposed, section 6245 conflicts with Evidence Code section 1119. The new section 6245 authorizes the State Bar to investigate and adjudicate the fitness of mediators. Such an adjudication would necessarily require evaluations and examinations of what occurred during mediations. However, Evidence Code section 1119 prohibits the disclosure of anything said or written in connection with mediation in any other proceeding, inclusive of an administrative adjudication. With the express prohibition of Evidence Code section 1119, it would be impossible for the State Bar to actually investigate and evaluate whether the mediator engaged in any misconduct during mediation.

http://calconference.org/html/wp-content/Resolutions/2012/05/Final%20Resolution%20Series%205-2012.pdf

According to the Conference’s procedural rules, the Resolutions Committee’s recommendation to disapprove is placed before the Conference at which point:

3. Action of the Conference: The Conference shall adopt the recommendations of the Resolutions Committee on each resolution as the action of the Conference unless a delegation files a written request requesting further consideration of the resolution. This request shall be known as a call-up. ( Article IV, Section 3)

http://calconference.org/conf_rules_2009.html

If there is a “call-up” of this resolution, it will then be debated at the full Conference for a limited period of time, with the proponent having no more than about 3 minutes ( “limited debate”) or 4 å_ minutes (“full debate”) to speak in favor of the resolution. (Article IV, Section 9)

So, while this resolution is not completely a non-issue quite yet, it appears that it may be heading in that direction. Thankfully, enough people let their views be known so that the Resolutions Committee saw fit to disapprove it.

….. Just something to think about.

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By |2017-05-13T07:34:19+00:00August 31st, 2012|Legislature|Comments Off on An Update To Proposed Mediation Regulation

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1700 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.