By Russ Bleemer

The prospects for a new California mediation confidentiality law that would provide an exception allowing parties to introduce evidence in a post-ADR malpractice case faded this week in the face of a frank report by the state commission that proposed the change.

“The opposition to the [California Law Revision] Commission’s tentative recommendation can only be described as overwhelming,” concludes Barbara Gaal, chief deputy counsel to the California Law Revision Commission, in a 36-page report released Wednesday.  She adds, “It is not unanimous, but it is deep and widespread. California’s mediation confidentiality statute may differ from those in other jurisdictions, providing greater protection in some respects, but a broad range of stakeholder organizations and many individuals appear to be well-satisfied with that approach and offer many reasons for their position.”

The new Sept. 27 report provides 155 pages of comments on a proposal to amend the state’s evidence that the commission has studied since 2012.  (The commission’s analysis is at http://bit.ly/2xQBnON; the comments are collected at http://bit.ly/2x2Dx9Y.) The amendment would add a new Section 1120.5 to the California Evidence Code, titled “Alleged misconduct of lawyer when representing client in mediation context.”

Because of an absolutist approach by the state’s courts, concerns have been raised for years over malpractice cases.  The state courts have barred the introduction of materials made in preparation for and used at mediation sessions in most cases.

The approach has provided a boost to California’s strong mediation culture, but has left victims of attorney malpractice with tough—some say insurmountable–paths to proving their claims.

The many comments submitted on the tentative recommendation “include scattered words of praise or appreciation for the Commission, its staff, its process, and its work on this study,” Gaal writes, but “[i]n general, however, they do not have much positive to say about the Commission’s proposal.”

Gaal urges the members of the commission to go back to the drawing board—not necessarily re-do the commission’s work (“Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct – Study K-402,” available at http://www.clrc.ca.gov/K402.html), but re-examine the reasons the study was undertaken, and whether the commission wants to proceed with a recommendation to the legislature.

She writes that the staff urges the commission members to “re-read” the tentative recommendation’s “key policy considerations at stake” in the study in assessing the criticisms.  (Direct access to the tentative recommendation is at http://bit.ly/2x2ePqr .)

The 15-page policy section emphasizes that protecting mediation confidentiality “rests on four key premises”: confidentiality promotes candor in mediation; candid discussions lead to successful mediation; successful mediation encourages future use of mediation to resolve disputes; and mediation use in resolving disputes is beneficial to society.

“The preparation of a Commission recommendation is not a popularity contest, but rather a quest to develop an analytically sound proposal that will serve the citizens of California well,” Gaal advices. “Nonetheless, the degree of opposition to the Commission’s proposal suggests that careful reexamination of the competing consideration is in order.”

If the commission elects to go forward with the tentative recommendation, Gaal notes that the commission’s staff will prepare a memo—presumably on the reasons for the proposal to be forwarded to the legislature—for the commission’s December meeting.

The commission’s efforts were examined extensively in Jeff Kichaven, A California Correction? Legislature Will Consider Allowing Attorney Malpractice Proof from Mediation,” 35 Alternatives 97 (July/August 2017)(available at http://bit.ly/2sNUOm1), and “How California Intends to Recalibrate the Concept of Mediation Confidentiality,” 35 Alternatives 93 (June 2017)(available with a subscription or after login at www.cpradr.org at http://bit.ly/2sWyqr1).

Kichaven’s July/August Alternatives cover article, in which the Los Angeles mediator strongly backed the proposal, which will allow evidence from mediations pertaining to attorney malpractice to be introduced in litigation, was submitted as a comment.

The article also a comparatively rare show of support in the face of the avalanche of the “decidedly negative” reaction.  Among the reasons commenters opposed the proposal, according to the commission report:

• It will undermine confidentiality;
• It could harm mediation participants who are not parties to an attorney-client dispute
• It will overburden the courts;
• The proposed mediation confidentiality exception’s benefits are minimal compared to the downsides;
• The exception “provides insufficient protection for mediator communications and will cause mediators to quit and mediator malpractice insurance rates to rise”;
• It will threaten the stability of mediated settlements;
• It would create the need to warn participants about the new proposed exception, “and that will create problems”;
• It will hurt vulnerable groups;
• It will affect attorneys disproportionately; and
• It “is a trap for the unwary,” will yield unpredictable results, and unpredictable protection for mediation communications.”

“In light of the generally negative input on the tentative recommendation,” Chief Deputy Counsel Gaal writes, “the Commission should take a hard look at its options and consider how to proceed. While the Commission should not base its policy recommendations on political considerations, neither should it ignore practical reality. The goal of a Commission study is to achieve positive reform of the law. That requires the crafting of a balanced reform that has a realistic chance of enactment.” [Emphasis is in the original.]

The document lays out the Commission’s options: Proceed with the current proposal in the face of what likely will be strong legislative opposition; turn the tentative recommendation into an information report for the California Legislature without recommending or proposing legislation; limit the exception to the private attorney-client discussions in a mediation context, instead of allowing litigants to introduce communications from the proceedings itself, thereby shielding the mediator or its adversaries; develop an “informed consent approach” and circulate a revised tentative recommendation; or revisit all of the options raised in the study, including leaving the current law intact.

The author edits Alternatives to the High Cost of Litigation for the CPR Institute. CPR Institute Fall 2017 Intern Angela Cipolla contributed to research.