On May 30, 2017, Chief Deputy Counsel Barbara Gaal, Esq. posted Memorandum 2017-30 containing most probably the final draft of the Tentative Recommendation of the CLRC on its study to create an exception to mediation confidentiality (Study K-402). While one or two issues remain for discussion at its June 8, 2017 meeting, the Commissioners will most likely approve this draft so that it will be posted for public comment later this month requesting that all comments be received by September 1, 2017.
In its current form, the Tentative Recommendations include:
- Creating an exception to mediation confidentiality that would apply only in State Bar Disciplinary Proceedings, a Claim for Damages Due to Legal Malpractice, or an Attorney-Client Fee Dispute;
- The exception would NOT apply in resolving a claim relating to the enforcement or rescission of a mediated settlement agreement or in a suit for specific performance;
- The exception would apply only to attorney misconduct in a professional capacity, that is, “…when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation-that is, an obligation the attorney has by virtue of being an attorney- in the course of providing professional services. ” (Id. at 135);
- The exception would apply only to alleged misconduct that occurs in a mediation context. A mediation context includes any alleged misconduct that may occur at any stage of the mediation process, such as during a mediation consultation, a pre-mediation telephone call, a mediation brief, a joint session, a private caucus with or without the mediator present, a mediation related telephone call et cetera. The issue is whether it relates to the mediation, and not the time or date of the alleged misconduct;
- A mediator generally could not testify or provide documentary evidence pursuant to the exception. That is, Evidence Code section 703.5 remains in effect and a provision will be added to the proposed legislation to include a mediator’s written evidence as incompetent as well;
- The same standard of relevancy would govern both the admissibility and discoverability of evidence of the alleged misconduct;
- The exception would limit the extent of disclosure to only the portion of the communication necessary for application of the exception;
- A court could use judicial tools such as sealing records, in camera proceedings, protective orders and redaction to prevent public disclosure of mediation evidence;
- Mediation participants would receive notice that a suit has been filed and thus be able to take steps to prevent improper disclosure of mediation communications;
- The exception would apply even handedly to the evidence- both to prove and disapprove a claim of alleged malpractice;
- The exception would apply to all types of evidence; not just to communications between the attorney and client;
- The exception will apply to every type of mediation in all fields of law; no exceptions such as for family law mediation or mediations conducted under the Dispute Resolution Programs Act will be made;
- The proposed legislation is to have no effect on the extent to which a mediator is or is not immune from liability under existing law;
- The exception has no provision for the issuance of sanctions by a court against a party who brings an unsuccessful malpractice action; and
- The exception will apply only prospectively- to all mediations occurring after its operative date.
(See, Memo 2017-30 at pages 133-140.)
For a full discussion, I recommend that you peruse, if not read, the full Draft Tentative Recommendation (http://www.clrc.ca.gov/pub/2017/MM17-30.pdf), then visit the CLRC’s website (http://www.clrc.ca.gov/ ) after its June 8 meeting to see what happened ( It is Study K-402.) and to provide comments once the Tentative Recommendation is indeed posted for public comment.
… Just something to think about.
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