Study K-402; Almost to the Legislature!
On January 5, 2018, The California Law Revision Commission (CLRC) published it Pre-Print Recommendation on its Study K-402- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct. The Note at the bottom of the page cautions that that the CLRC has approved the substance of the report; minor editorial changes may be made before final printing.
The Recommendation will soon be on its way to the legislature. While the report is 148 pages long, it is the last 13 pages that are relevant. They contain the actual recommendations and proposed legislation- new Evidence Code Section 1120.5. (See, Pre-Print Recommendation.1.05.2018 .)
Those recommendations include:
- The proposed new exception would NOT apply in resolving a claim relating to the enforcement of a mediated settlement agreement either in terms of enforcement, specific performance or rescission;
- The proposed new exception would apply to a disciplinary proceeding under the State Bar Act, a civil action or arbitration seeking damages for alleged malpractice, and an attorney fee dispute including one brought under the mandatory fee arbitration provisions of the State Bar Act;
- The proposed new exception would apply only to attorney misconduct in a professional capacity, that is to a professional obligation that one has by virtue of being an attorney;
- The proposed new exception would apply only to alleged attorney misconduct in representing a client; it would not apply to the mediator who happens to be an attorney;
- The proposed new exception would apply only to alleged misconduct occurring in the context of a mediation or mediation consultation. This includes any actions taken or communications during the mediation process such as telephone calls, briefs, face to face meetings either separately or jointly with the other parties or with or without the mediator), et cetera;
- The proposed new exception would provide that generally the mediator could not testify or provide documentary evidence other than as set out in the exceptions in Evidence Code Section 703.5;
- The proposed new exception would prohibit the parties from going to a third-party source (such as an individual or an IP provider such as Google etc.) to obtain or learn the content of a mediator’s oral or written communications;
- The proposed new exception would provide that the same standard of Relevancy would apply both to the discoverability and admissibility of evidence;
- The proposed new exception would limit the extent of the disclosure to “…only the portion of the communication necessary for application of the exception” (Id. at 141; emphasis original.);
- The proposed new exception would provide that a court could use judicial tools such as sealing orders, protective orders, redaction, in camera hearings et cetera to limit exposure to the public;
- The proposed new exception would require that mediation participants (including the mediator) receive reasonable notice of the disclosure of a mediation communication so long as the participant’s identity and address are reasonably ascertainable. Such notice must provide the names of the parties to the dispute over the alleged mediation misconduct; warn the other participants that mediation communications may be disclosed in the dispute; identify the specific statutory basis for the potential disclosure; and include a copy of the complaint or other initial pleading alleging the misconduct;
- The proposed new exception is to apply even handedly, both to prove or disprove the allegations;
- The proposed new exception applies to all types of communications and writings;
- The proposed new exception applies to all fields of law; none is carved out;
- The proposed new exception does not affect the immunity of the mediator as it presently may exist;
- The proposed new exception has no separate sanctions provision;
- The proposed new exception can NOT be waived by contractual agreement purporting to override the exceptions. Such waiver will be null and void; and
- The exception applies only to mediations that occur after its operative date; and
As always, I strongly urge everyone to follow this proposed legislation closely and to make yourself heard to your legislator, whether you are in favor or against it.
….Just something to think about.
By Phyllis G. Pollack