An Australian and a Canadian walk into a California Law Revision Commission Meeting… And Listen.

By: Jennifer Winestone and Karinya Verghese*

Confidentiality has long been touted as a cornerstone of mediation practice in California. However, that may soon change due to a proposal to amend the Evidence Code protections for mediation confidentiality (sections 1115 - 1128).

Today we attended the California Law Revision Commission (“Commission”) meeting, which considered (among other agenda items) the proposal, which would carve out an exception to mediation confidentiality in cases of alleged attorney malpractice and other misconduct (Commission Study K-402).

This hotly-contested issue largely arises out of the decision in Cassel v. Superior Court of Los Angeles County 51 Cal 4th 113 (2011) which held that mediation confidentiality includes private discussions between attorney and client during the mediation process. We understand that the precipice of the Commission’s study arises from a concern raised in obiter by the dissenting judge on appeal, Justice Dennis Perluss.  Specifically, Justice Perluss noted that “protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation.”  In his dissent, Perluss invited the current legislative inquiry by noting that it is up to the state Legislature “to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so”.

The Commission comprises of 10 sitting commissioners.   In addition to those Commissioners, approximately 40 members of the public attended the open meeting. Public attendance included members of the mediation and collaborative law communities, lawyers, and two retired judicial officers.  The majority of people in attendance were from the family law bar and collaborative family law community.  Although the Commission appears to have expected public attendance, they were unprepared for the volume of attendees and seating was added to accommodate the crowd.

At the start of the meeting, Commissioner Victor King, chairperson of the Commission, joked that the mediation confidentiality discussion had been postponed for another day.  This helped ease tensions as the crowd anxiously awaited the agenda item of the day and their opportunity to be heard on the issue.

After an explanation of the Commission’s study and proposal process by Commissioner Barbara Gaal (Chief-Deputy Counsel and lead of Study K-402), Commissioner King invited comments from the public on two issues:

  • the proposed exception to mediation confidentiality; and
  • the concept of in camera proceedings for malpractice actions brought under thelegislative exception (which concept was submitted by the Southern California Mediation Association (“SCMA”) as a proposed compromise to the balance of confidentiality/accountability interests arising from the exception).

Arguments Against the Proposed Amendment to Mediation Confidentiality

Fern Topas Salka, Fred Glassman, Bob Flack, Hon. Keith Clemens, Comm. (Ret.), Ron Kelly, Hon. Gretchen Taylor (Ret.), Kelly Chang Rickert, Warren Sacks, Leon Bennett, Delilah Knotts-Rios, Karen Rosin, Mark Baer and Cari Pines spoke in opposition of the proposed amendment. The arguments broadly fell into three categories, namely that the proposed amendment would:

  1. diminish candor (as the mediation room will no longer be an environment of “safety and trust”); 
  2. stifle the creativity of settlement options; and,
  3. produce significant consequences to the viability of mediation as an alternative to litigation,  resulting in an increased court docket and decreased mediation participation by both legal professionals and their clients.  

Essentially, it was the opinion of the opposition that the proposed amendment would do far more harm than good.

Arguments For the Proposed Amendment to Mediation Confidentiality

Jeff Kichaven spoke in support of the proposed amendment. He based his argument in “the rule of law” and the principal that “for every wrong, there is a remedy,” explaining that if an attorney causes harm, he/she should be liable for damages. He also opined that the reasons proposed by the opposition are speculative and not grounded in empirical evidence, noting that states that have adopted similar exceptions to mediation confidentiality have not suffered the harm alleged by the opposition.

In camera proceedings

The SCMA urged the Commission, in the event that it decides to recommend the legislative exception, to also recommend protective measures, such as in camera proceedings, to address confidentiality concerns. Such in camera proceeding would involve a non-public evidentiary hearing to determine the admissibility of proffered evidence from mediation communications in cases of alleged attorney malpractice.

When asked about the in camera proposal, the public largely responded that it was a subsidiary issue of an already unpopular exception. Accordingly, the majority either opposed the proposal or abstained. Those who spoke on the issue raised concerns that in camera proceedings would be burdensome on the courts and result in unpredictability with respect to mediation confidentiality.  Additionally, speakers addressed process-related concerns regarding notice, costs and standing of parties whose privacy interests may be affected as parties to the mediation, but who would not necessarily be party to the malpractice action.

Next steps and Questions Raised

The Commission noted that it was early in its decision process and only at the tentative proposal stage (as opposed to a final proposal which is submitted for consideration in the general legislative process).  However, it also suggested that it was unwilling, at this time, to revisit the decision to craft an exception to mediation confidentiality.  The general reaction from the public in attendance was disappointment.

As observers, the process today raised two interesting questions, which we leave open for comment:

  • First, there was a significant under-representation of commercial and employment mediators and attorneys – what are their views on the proposal? Does the proposal’s impact vary across areas of practice; and
  • Secondly, is this a zero sum game or are there other alternatives that the Commission should consider in balancing party confidentiality and attorney accountability? If so, what are these alternatives, and how can they be implemented?

For more information on the Commission’s study and work to-date on this issue, please see http://www.clrc.ca.gov/K402.html.

* Jennifer Winestone, Esq., LL.M. (ADR) is a family attorney from Toronto, Canada with a license to practice in Ontario and California.  She practices as a family mediator in Los Angeles.  Karinya Verghese, LL.B, LL.M (ADR) is a corporate attorney from Sydney, Australia.  She practices as a commercial mediator in Los Angeles.