As I have mentioned previously, I am the current president of the Southern California  Mediation Association (“SCMA”).  About a week or so ago, many of us gathered to honor Richard Millen, a co founder of SCMA and a leader in the Southern California mediation community who passed away in March 2010.   I attended that tribute and want to share with you my reflections on that wonderful evening…..

On Thursday night, May 27, 2010, Richard Millen was remembered by his family and friends from the mediation community. His family let us in on the deep dark secrets of how Richard was transformed from a Harvard trained business lawyer to a mediator with the mantra “follow the process.” We met Doug Kruschke who was responsible for suggesting that Richard attend Life Spring and pointed him toward mediation, which transformed Richard, who, in turn, inspired and changed each of us.

His friends remembered when and how they met Richard, even though, in truth, most of them could not remember the exact details; rather, each remembered simply that Richard had always been their friend, and mentor, their inspiration, who always said “yes” and who had always been around. Lee Jay Berman cited the Lyle Lovett song where he sings about a woman, saying, “I can’t remember how I met her; seems like she’s always just been hanging here off of my right arm.”

We were told stories of his singing abilities as his daughter Kathy recounted his “Tennessee Song” talking about the men of the US Calvary, of which Richard was one; of his organizing so many meetings of mediator round tables (before he co-founded SCMA!) and of more recent monthly series of mediator meetings they called   “My Dinner with Richard,” where they met to discuss Richard’s passions, including Martin Buber, Rumi, Ghandi, the Bodhisatvah and Ram Daas, who Richard had met.

We were reminded of all his favorite quotes, like Lao Tzu’s “A leader is best when people barely know he exists, when his work is done, his aim fulfilled, they will say: we did it ourselves.” and how he practiced his patient listening and tolerance (“living with opposites and acceptance of others”) as a devout liberal by watching Bill O’Reilly regularly and practicing sitting quietly, and his philosophy on life. Although a lawyer by training, Richard came to believe that people didn’t have legal problems until the lawyers got involved, and if people just listened to each other, communicated with each and let the process do its work, a resolution would be reached.

Many of you know that a few years ago, SCMA (through a special vote of its members) amended its bylaws as Richard was terming off of the board to create an Emeritus Board  position  just for him, because we did not want to lose Richard and his valuable insights and input..  We also named our annual Peacemaker of the Year award after Richard and Ken Cloke, awarding the Cloke- Millen award for the first time at our Annual Conference in November 2004.

We miss Richard very much and will continue to miss him deeply. But we carry him in our hearts and thoughts: he is still with us, if only in spirit, smiling down on us reminding us to follow the process. We owe him so much. . . much more than we can ever  possibly  put into words. He was and remains truly and forever our “Yoda”.

… Just something to think about!

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Recently, in her Two-Minute Training, my colleague Maria Simpson, Ph.D (www.mariasimpson.com) wrote about a process called “social construction” as defined inThe Social Construction of Reality by Berger & Luckmann (Doubleday 1966).

As she explains:

“Social Construction means that we create meaning through social interaction, mostly talking to each other. . . . We look at the world around us and try to find reasons for what has happened, good or bad, or find meaning in events. . .”

That is, we create our “realities” through conversation and discussion, through the specific words we use. Based on the words we choose, we can either create agreement or disagreement, resolution or conflict, thoughtful consideration or intolerance.

Why is “social construction” important? Because it plays a critical role in every dispute and thus in every mediation. Each of us comes to a mediation with our own construct of “reality” of the “true” facts of “what really happened.” We each have our own “story” built on our interactions with others. This is the “story” we bring to the dispute, we tell in a joint session and go into more detail with the mediator in a separate session. Obviously, one party’s “perception” of the “truth” will be different than the other party’s because the “reality” of each participant is different. Because of life experiences and social interactions with others, each participant comes from a “different place” with a different “reality” of what happened!

In many mediations, I discuss this point with each party: that there is no one single “truth” but merely every one’s own unique perception or social construction of what happened. There is no single “right” and no single “wrong.” Because of our social construction, our “right” and “wrong” will be different.

In a dispute, this point is critical. If the dispute is to be resolved, each participant  must be willing to acknowledge this process of social construction and be able to see the dispute from the other person’s vantage point, “reality” or perception. Once accomplished, it becomes apparent to all concerned that the dispute is not as cut and dry or as black and white as initially perceived but rather very mercurial and nebulous; there are a lot more different sides or “realities” to the dispute than originally imagined.

Once the parties understand that there are several different “realities” or several different social constructions of the “truth”, the dispute becomes more malleable and thus easier to settle. Understanding that there is no one “true” story, each party no longer clings so tightly to her social construct of “the truth” and without necessarily accepting the other party’s construct (although perhaps acknowledging its existence), becomes more willing to settle. Principles of “right” vs. “wrong” give way to pragmaticism and practicality. With luck and persistence, the matter settles.

As my colleague concludes in her short Two-Minute Training: “Reality is, after all, yours to define.”

. . .Just something to think about.

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       Last week, I discussed a legislative bill, AB 2475, introduced into the California legislature which, if passed, abolishes quasi-judicial immunity for mediators and other alternative dispute resolution professionals.(ab_2475_bill_20100408.) As President of the Southern California Mediation Association (“SCMA”), I sent a letter to the sponsor of the legislation, posted it on my blog and urged everyone to make their voices heard.
 

      It seems those voices were heard as the legislation was amended on April 22, 2010 to abolish quasi-judicial immunity only for matters falling within California’s Family Code. (ab_2475_bill_20100422 .) Thus, while this legislation no longer effects mediators handling civil, commercial, contractual or personal injury disputes, it still effects private mediators handling family-law matters. Given that its purpose is apparently aimed at evaluators (i.e. not mediators) who submit findings and recommendations to a court, this latest amended draft still sweeps too broadly: Family law mediators are bound by mediation confidentiality and so do not submit any findings and recommendations to a court.

       So, once again, I have written to the sponsor of the legislation ( letter) and urge each of you to do the same and make your viewpoint known and heard.

       . . . Just something to think about.

Postscript:   It seems that this draft legislation has once again been amended. On April 28, 2010, it was modified drastically  so that it now abolishes”… quasi -judicial immunity… [for] any private third  party … appointed by the court …who provides a report or findings to the court in a proceeding under the Family Code, with the intention that the court act in one way or another based on the  report or findings….” (ab_2475_bill_20100428.) Success! The Assembly Member heard your voices!  Have a great day!

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       In 1990, a California appellate court held that “absolute quasi-judicial immunity is properly extended to neutral third persons who are engaged in mediation, conciliation, evaluation or similar dispute resolution efforts.” Howard v. Drapkin (1990) 222 Cal. App. 3d 843, 851-860.( 222_cal__app__3d_843)
 

      Recently, California Assembly Member James T. Beall, Jr. introduced AB 2475 (ab_2475 ) which would abolish such quasi-judicial immunity not only in all court ordered mediations but in those held privately, as well, It is rumored that the genesis of this draft legislation was a family law matter that went awry. That is, as rumor has it, a family law evaluator (not a mediator) submitted substantive written recommendations to the court which adopted them. The consequences were disastrous for the family who sued the evaluator but lost due to this quasi-judicial immunity.
 

      In an attempt to correct the “problem,” Assembly Member Beall drafted this legislation which, “throws the baby out with the bath water.”
 

      Because of the importance of this issue, I want to share with you, the letter I wrote as President of the Southern California Mediation Association to Assembly Member Beall opposing this legislation. ( letter)
 

      As the issue affects not only mediators but parties to a dispute, (mediations are liable to become a lot less available), I urge each of you to write Assembly Member Beall and make your voice and thoughts known.

       . . .Just something to think about.

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       According to the Second Appellate District of the California Court of Appeal, mediation confidentiality does not and will not protect attorney-client communications. In Porter v. Wyner, Case No. B211398 (April 8, 2010), (Porter v. Wyner )this appellate court held that communications between an attorney and a client during a mediation are not protected by mediation confidentiality.

       In light of the California Supreme Court’s repeated pronouncements that mediation confidentiality must be given broad application without exception, I question how long this decision will remain valid. I strongly surmise that it will be short lived.
 

      But, back to Porter v. Wyner. Plaintiffs John Porter and Deborah Blair Porter sued the Manhattan Beach Unified School District and the California Department of Education on behalf of their son who required special education services. In that suit, the Porters were represented by Steven Wyner and Marcy Tiffany, the defendants herein (“Wyner Tiffany”).

       This underlying action was resolved at mediation. Plaintiffs alleged that during this mediation, Wyner Tiffany agreed to reimburse the Porters for the attorneys’ fees and costs that the Porters had previously paid and further agreed to pay Mrs. Porter for services she rendered as a paralegal.
 

      Once the settlement was documented and concluded, the instant dispute arose, with Wyner Tiffany denying it had ever agreed to these things.
 

      Consequently, the Porters sued Wyner Tiffany for legal malpractice and related claims. During the litigation, the defendants’ attempts to keep out all of the attorney-client communications made during the mediation on the grounds that they were protected by mediation confidentiality, were denied and rebuffed by the trial court. At trial, Wyner Tiffany, initially, filed a motion in limine to exclude all such communications but withdrew it based on the waiver argument made by the Porters.
 

      After a jury trial, the jury returned a verdict for the Porters and against the defendants, awarding Mrs. Porter her back wages of $211,000 as a paralegal and the Porters $51,000 for breach of the attorney fee agreement.
 

      About a month later, the California Supreme Court decided Simmons v. Ghaderi (2008) 44 Cal 4th 570. (simmons_v_ghaderi ).Based on this decision, the trial court granted Wyner Tiffany’s motion for new trial on the grounds that evidence concerning mediation in the underlying action was improperly placed before the jury. Although Wyner Tiffany also filed a motion for judgment notwithstanding the verdict (Motion for Jnov), the trial court held it was moot.
 

      The appellate court reversed the order granting a new trial and remanded the matter back to the trial court to rule on the Motion for Jnov. It determined that mediation confidentiality applies only to communications between the disputing parties, and not to an attorney and his client, not even to those communications occurring when the mediator and/or opposing counsel are present during a mediation. (Id. at p. 16.) The appellate court reasoned that communications between an attorney and client are not the type of communications that the legislature had in mind when it provided the cloak of confidentiality to all evidence or anything said or admission made “for the purpose of, in the course of or pursuant to” the mediation process (California Evidence Code §1119). Rather, the appellate court opined that the open, candid and frank exchange promoted by the cloak of confidentiality applies to parties or disputants themselves: they are the ones who filed or responded to the lawsuit. In the appellate court’s view, the mediation is conducted to resolve the differences between the disputants or plaintiff and defendant, and not between an attorney and his client who is one of the parties. Thus, to the appellate court, communications between an attorney and his client cannot be considered to be “in the course of or pursuant to” a mediation. Otherwise, all attorney-client communications from time immemorial would be potentially covered by this privilege, which to the appellate court makes no sense. (Id. at p.11-15).
 

      Further, the appellate court reasoned that mediation confidentiality should not trump Evidence Code §958 which waives the attorney-client privilege when breach of the attorney’s obligation to his client is at issue. ( Section 958 states:” There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship. “)

The appellate court reasoned that if mediation confidentiality were applied, this Evidence Code section would be a nullity: an anomalous situation would be created. (Id.)
 

      The appellate court also believed that to allow attorney-client communications to be cloaked with mediation confidentiality would have a chilling effect on the use of mediations. It would preclude clients from pursuing any remedy against their own counsel for any alleged malpractice that may have occurred during the mediation process. (Id.)

       As noted, it will be very interesting to see how the California Supreme Court responds to this decision. Thus far, the Second Appellate District is batting way below the “Mendoza line” on this issue: that is, in every instance in which the California Supreme Court has reviewed the Second Appellate District decision not upholding mediation confidentiality, the Supreme Court has reversed, holding, repeatedly, that mediation confidentiality means just that: confidential with no exceptions. I strongly suspect that this decision, too, will not help the appellate court’s batting average!

       . . .Just something to think about.

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