The California Law Revision Commission met once again on September 22, 2016 to discuss its Study K-402- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct.

At its prior meeting, the Commission (or CLRC) requested Barbara Gaal, Chief Deputy Counsel to address the issue of requiring a certification on the merits by an attorney certified as a legal malpractice specialist similar to what is required in lawsuits against architects, engineers and surveyors pursuant to California Code of Civil Procedure §411.35.

At this meeting, the Commissioners discussed the use of such certification and determined NOT to require any sort of certification either by a legal malpractice specialist or by the attorney filing the litigation (i.e. self-certification). Thus, for now, the CLRC is not requiring any type of filter prior to filing the lawsuit.

This study was started in the summer of 2013, and last year the CLRC finished its extensive background work. For the last year, it has been making policy decisions on what a tentative recommendation should look like.

Consequently, the Commissioners voted that it was time to start actually drafting a Tentative Recommendation. The term “Tentative Recommendation “is a term of art which   encompasses drafting tentative legislation, drafting comments to each proposed piece of legislation and drafting a narrative explanation of the forms.  By the Commission’s vote, Ms. Gaal will begin drafting tentative legislation.

Ms. Gaal noted that the Commission has left unresolved some issues such as the admissibility of what is otherwise confidential mediation communications during the litigation process. She noted that the drafting process will be helpful in that it will expose the issues that still remain to be resolved by the Commission.

Towards the end of the hearing, the Commission assured those present that the creation of an exception to mediation confidentiality is not necessarily a fait accompli. Rather, for present purposes and at this point in the study, the Commission has decided to create the exception. It will use the Tentative Recommendation as a vehicle to solicit public opinion and to act upon those comments.  Often, or it is not unusual for a Tentative Recommendation to be modified or changed substantially or wholly replaced with a different approach based on the comments received after the Tentative Recommendation is put out for public comment for 60- 90 days.

In short- the Commission has NOT made its final decision, and there is a long way yet to go. All three components of the Tentative Recommendation must be drafted and approved by the Commission, then put out for public comment. The Commission then reviews and acts on those comments and only then will the Commission send its Tentative Recommendation to the Legislature where it will proceed through that process.

During the hearings, several speakers suggested different options including informed consent, the use of a disclosure form to be published by the Judicial Council, requiring disclosure of the nature of mediation confidentiality and its consequences either by the mediator or the party’s attorney (or a self-represented party educating herself about it).

In response, the Commission voted to re-visit the list of options provided to it in Ms. Gaal’s  2015-33 Memorandum (July 30, 2015) and requested that she provide a memorandum discussing the possible inclusion of complimentary, supplementary or alternative options based on that list of options.  The Commission may include options in its Tentative Recommendation so that when it is published for public comment, it is a complete package rather than piecemeal.

The next meeting of the CLRC is in Los Angeles, Ca. on December 1, 2016 from 10:00 a.m. to 4:00 p.m. I urge you to attend, or  e-mail  comments to Barbara Gaal, Chief Deputy Counsel at Barbara Sandra Gaal   or write to her  California Law Revision Commission,4000 Middlefield Rd, Ste D2, Palo Alto, CA 94303

… Just something to think about.



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