On Saturday, March 19, 2016, the Southern California Mediation Association held a Town Hall on two topics: mediator certification and mediation confidentiality. It is the latter that I wish to discuss.
The Supreme Court of California has repeatedly held that mediation confidentiality as set out in California Evidence Code Sections 1115-1128 is absolute. There are no exceptions unless the “result would violate due process, or lead to absurd results that clearly undermine the statutory purpose.” (Cassel v Superior Court (2011) 51 Cal. 4th 113,119.) So, far, the Court has not been presented with such a case.
In response, in 2012 a bill was introduced into the California legislature to create an exception to mediation confidentiality for both civil and disciplinary actions against attorneys who breach their duties to their clients during a mediation. The bill created so much opposition that the Legislature gutted its contents and amended it to refer the matter to the California Law Revision Commission (CLRC) for study and review.
Recently, the CLRC voted to recommend that such an exception be created. This, too, created much opposition and discussion within the mediation community. Likewise, it created much discussion during the SCMA’s Town Hall.
One suggestion made to the CLRC but so far not adopted is the notion of “informed consent”; that litigants be told prior to mediation that mediation confidentiality will preclude any action (civil or disciplinary) by them against their attorney if they do settle and later have “buyer’s remorse.” In 2007, the appellate court in Wimsatt v. Superior Court (2007) 61 Cal. Rptr. 3d 200, 220 suggested as much:
In light of the harsh and inequitable results of the mediation confidentiality statutes (Evid. Code §1115 et seq.) such as those set out above, the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, they should “make ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services:
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