On July 22, 2016, the California Law Revision Commission (CLRC) held its meeting to discuss, among other topics, mediation confidentiality. In preparation for the meeting, Chief Deputy Counsel Barbara Gaal prepared memoranda addressing the use of Preliminary In Camera Filtering processes (Memo 2016-38 and First Supplement to Memo 2016-38) and Possible Questions for the State Bar (Memo 2016-37 (as well as providing copies of public comments (Memo 2016-39 and First and Second Supplement to Memo 2016-39.) (All referenced materials may be found at: http://www.clrc.ca.gov/K402.html#Staff Memoranda.)

In its June 2016 meeting, the CLRC agreed to look more deeply into the issue of using either a type of Early Neutral Evaluation Conference or the use of a process similar to one found in Civil Code Section 1714.10 which requires a pre-filing hearing before a judge to determine if a complaint alleging a conspiracy between an attorney and a client has a “reasonable probability “of prevailing. If it does, the court will allow it to be filed.

At the July 2016 hearing, Chief Deputy Counsel Barbara Gaal discussed her latest memoranda delving into these two possible pre- screening devices. After some discussion, the CLRC voted NOT to proceed further with either process.

In a First Supplement to Memo 2016-38, Ms. Gaal addressed some additional suggestions from Commissioner King to perhaps require a certification as part of filing the lawsuit. One suggestion he made was to follow Code of Civil Procedure Section 411.35 which requires, in some instances, a certificate by the attorney that he/she has consulted an architect, professional engineer or land surveyor regarding the case as part of the filing of the complaint. Commissioner King suggested minor changes to the statute such that in the case of alleged malpractice or other misconduct committed during mediation, the plaintiff’s counsel would have to submit a certificate based on a consultation with a certified legal malpractice specialist regarding the merits of the case. (Id. at 1-6.)

The other suggestion made by Commissioner King was a self-certification requirement. Any pleading alleging attorney misconduct during mediation must be verified by an affidavit of the party or his/her attorney attesting “…  that there are reasonable grounds to bring the proceeding “(First Supplement to Memo 2016-38 at 6.)

After some discussion among the Commissioners and comments from the audience, the Commissioners voted to have Ms. Gaal conduct further research into these two types of certification. The Commissioners also voted that there should be no sanctions provision attached should the case (previously certified) be adjudged to lack merit.

Finally, the CLRC discussed the response of the State Bar to a request for any empirical data relating to complaints about alleged malpractice or other misconduct  occurring during mediation. The State Bar advised that its database does not contain a category for mediation related conduct and that the way the complaints are inputted into the computer, it would be burdensome, outweighing any benefit, to attempt to analyze them for such information.

A suggestion was made that as part of its recommendation to the Legislature, the Legislature require the State Bar to collect data about alleged malpractice and other misconduct occurring during a mediation and to keep such statistics of mediation related alleged malpractice and other misconduct. The CRLC voted to have Ms. Gaal flush out this suggestion in more detail for further discussion.

Although the CLRC has already agreed to recommend that an exception be created to mediation confidentiality for instances of attorney malpractice and other misconduct arising during a mediation, at both this meeting and the June 2016 meeting quite a bit of time was spent discussing whether there is any empirical data to support the need for such an exception. The point was repeatedly made that there is very little data on the topic, and the little data that does exist seem to indicate that the complaints are far and few between. Rather, the majority of participants are happy with the results of their mediations.

Such discussion raises a question: Why are the Commissioners raising this point now? Is it because they might re-consider their initial decision to create an exception? Or, are they simply seeking confirmation of their decision (i.e., confirmation bias!). Who knows?

In sum, it appears that the CLRC is slowly but steadily going down a predetermined path. At its August and October 2015 meetings, the Commissioners voted to create an exception to mediation confidentiality that would “only apply to alleged misconduct of an attorney acting as an advocate, not to allege misconduct of an attorney-mediation.”  (Memo 2016-18 at 4 (April 4, 2016)).

In its attempt to make recommendations that ‘balance the competing public interests between confidentiality and accountability” (AB 2025-Amended in Assembly May 10, 2012), the Commissioners agreed to study the use of in camera review as a pre-filing screening device. Learning that the use of this mechanism (if not carefully and meticulously drafted) may violate the public’s right to judicial records and proceedings provided under both the First Amendment to the U. S. Constitution and similar provisions under the California Constitution (Cal. Const. art I, §§ 2(a), 3(b)), (see, supra, (generally) Memo 2016-18) as well as be burdensome on the courts, the Commissioners then sought to find some streamlined “gatekeeper” type hearing process. At its April 2016 meeting, they narrowed the five options offered by its Chief Deputy Counsel down to two options.  Then at the July 2016 meeting, they voted against both of these gatekeeper type options, and agreed to look into either certification or self-certification.

Meanwhile at its June 2016 meeting, the Commissioners voted that once the lawsuit is filed, there shall be full public disclosure. While the issue of notice to the other participants in the mediation was raised by a member of the audience, the Commissioners have not acted upon what to do about providing notice to those participating in the mediation (other than the attorney and client involved) that their confidential statements may become part of a public record.

Thus, it appears that the Commission is slowly moving towards simply allowing a lawsuit to be filed without any real or meaningful gatekeeping function and that once filed, there will be full disclosure of every statement and conduct made in mediation without notice to any of the other participants involved! The CLRC has seemed to have forgotten that its mission is to balance the competing interests of confidentiality and accountability and is recommending things that are far broader than the original AB 2025 which proposed lifting the veil of mediation confidentiality ONLY between the attorney and his/her client and not with respect to the participants in the mediation.

To quote the Grateful Dead, “What a Long Strange Trip It’s Been!”

The next meeting of the CLRC will be on September 22, 2016 in Davis, California. I urge you to attend, or send comments to Barbara Gaal, Chief Deputy Counsel at <bgaal@clrc.ca.gov>




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