The California Law Revision Commission (CLRC) held its latest meeting on April 14, 2016. With respect to mediation confidentiality, the issue under discussion was in camera review. In the latest memo on the topic- Memorandum 2016-18 ( April 4, 2016)- Ms. Barbara Gaal, Chief Deputy Counsel, outlined an extensive procedure for use of in camera review in litigation involving alleged professional negligence or malpractice occurring within a mediation.
The initial reaction of some of the commissioners was that the in camera screening process should be one that is simple, preliminary and required prior to the institution of suit similar to what occurs in criminal law. From the ensuing discussion among the commissioners, it became clear that they did not want to recommend a detailed in camera review process but rather recommend a very simple and general one.
After lengthy discussion, the Commissioners voted to have staff counsel:
1. Investigate reasonably and succinctly whether it is possible to use a preliminary screening method BEFORE the complaint is filed much like a preliminary hearing in camera used in criminal matters pursuant to Pitchess v. Superior Court (1974) 11 Cal. 3d 531 or a motion to strike under the anti-slapp statutes (CCP 426.16-425.18 (Strategic Lawsuits against Public Participation)) to determine whether the potential malpractice action arising out of what occurred in mediation has a probability of prevailing on the merits or similar standard, but all the while complying with the Constitutional limitations that the public has a right of access to hearings in the Court under the First Amendment (Right to Access) to the U. S. Constitution and Article I, Section 2, Subdivision (a) and Article 1, Section 3(b) of the California Constitution) ( Memorandum 2016-18 at 7-8,31-32 );
2. Investigate what types of screening device or method to use once a complaint gets past the threshold screening above, in terms of deciding the admissibility and discoverability of documents or other evidence perhaps in conjunction with the current California Rules of Court on sealing of documents (Rules 2.550–2.551 trial court; 8.45 to 8.47 for appellate courts); and
3. Review prior memoranda for cases cited from other states in which in camera proceedings were used in actions involving malpractice occurring during mediation; how did those courts decide about the mediation confidential evidence?
At its previous meetings in August and October, 2015, the Commission made the following decisions for purposes of a tentative recommendation:
- The exception should “only apply to alleged misconduct of an attorney acting as an advocate, not to alleged misconduct of an attorney-mediator.”
- The exception “should only apply to evidence of misconduct that allegedly occurred in the context of a mediation.”
- The exception “should only apply to alleged misconduct in a professional capacity.”
- The exception should apply in a State Bar disciplinary proceeding and in a legal malpractice case. It should not apply in a proceeding relating to enforcement of a mediated settlement agreement. The Commission has not yet decided how to handle disputes relating to attorney-client fee agreements.
- The exception “should apply evenhandedly, permitting use of mediation evidence to prove or disprove a claim.” It does not appear necessary to expressly mention “reporting” of professional malfeasance in addition to “proving” and “disproving” such conduct.
- The exception should “apply to all types of mediation evidence,” not just to a private attorney-client discussion or other particular type of mediation communication.
- The exception should include a provision similar to Section 6(d) of the Uniform Mediation Act, which limits the extent of disclosure of mediation communications.
- The exception should not specify any sanction to impose upon a party who (1) seeks admission or disclosure of mediation evidence pursuant to the exception, (2) causes others to incur expenses or expend effort in response, and (3) ultimately fails to prevail. Existing law on the availability of sanctions and similar consequences should be sufficient.
- The exception should expressly state that it is not intended to affect the extent to which a mediator is, or is not, immune from liability under existing law.
- The exception should only apply to evidence from a mediation that commences after the exception becomes operative.
- The exception should be placed in the Evidence Code.
- The existing provision that makes a mediator incompetent to testify in most civil proceedings (Evidence Code Section 703.5) should remain as is. Accordingly, the proposed new exception would not alter the circumstances under which a court must consider a mediator incompetent to testify. As under existing law, however, a mediator would not be incompetent to testify as to a statement or conduct that could “be the subject of investigation by the State Bar ….” (Memorandum 2016-18 at pp.4-5).
The next meeting of the CLRC will be on June 1, 2016 at Davis, California. I urge anyone interested in this subject either to attend the next meeting and/or to send comments to Ms. Barbara Gaal, Chief Deputy Counsel at email@example.com
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