On September 11, 2018, Governor Jerry Brown signed SB 954 which (when it takes effect on January 1, 2019) will require attorneys to inform their clients of the confidentiality restrictions related to mediation and to obtain their clients’ written acknowledgment that this disclosure has been made to them and that they understand it.
While this requirement does not apply to class or representative actions, it does apply, “…as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation.”(Section 1129(a).) At that time, the attorney shall “… provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.” (Id.)
The new statute contains a sample disclosure form that if used, will provide a “safe harbor” such that the disclosure requirements will be deemed met. ( Section 1129(d).)
Significantly, the failure of an attorney to comply with this new law will NOT provide a basis to set aside an agreement prepared for, in the course of, or pursuant to a mediation. (Section 1129(e).) But, so long as the disclosure form “… does not disclose anything said or done or any admission made in the course of the mediation”, it will not be deemed confidential and thus “…may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.” (Section 1122(a)(3).)
This new bill grew out of the decision in Cassel v Superior Court, (2011) 51 Cal. 4th, 113, 119 Cal Rptr. 3d 437 in which the Supreme Court declared that the policy underlying mediation confidentiality overrides the ability of a party to a mediation to sue his attorney for alleged professional negligence occurring at the mediation. In his reluctant concurring opinion, Justice Chin noted that while he agreed with the majority that the Court must give full effect to the statutory language, perhaps the Legislature did not fully consider the law’s effect of fully shielding attorneys from accountability in this way and that perhaps there is a better way to counter balance the competing interests of confidentiality and accountability. (Id. at 51 Cal 4th at 139.)
This concurring opinion led to the introduction of AB 2025 (in February 2012) to create an exception to mediation confidentiality for legal malpractice. After initially being introduced, the bill faced extreme opposition to the point that it was amended (in May 2012) to refer the matter to the California Law Revision Commission to study the matter and make a recommendation. Five years and over 3,000 pages of memoranda later, it issued a Tentative Recommendation in June 2017 for public comment. It was met with over whelming opposition and thus its proposed new bill was never introduced into the Legislature in the fall of 2017.
However, most parties involved in this process agreed that parties to mediation should be made aware ahead of time of the confidentiality provisions and their consequences; most predominantly, that whatever occurs during a mediation or in a strategy session leading up to the mediation will not be admissible in a subsequent malpractice action. (That is, some form of “prior disclosure” or “informed consent”.)
Hence the introduction in January 2018 and subsequent enactment of SB 954. It provides that transparency so that parties attending mediation go in with eyes wide open, aware that if the mediation does not go the way they want, they cannot later take their disappointment out on their attorney by suing for legal malpractice.
Hopefully, this proactive measure will help increase a party’s satisfaction with the mediation process and its outcome.
SCMA is delighted to announce that Founding Member and noted mediator and author, Kenneth Cloke, will be the Opening Plenary Speaker for our 30th Annual Mediation Conference! Ken is a world-recognized mediator, dialogue facilitator, conflict resolution systems designer, teacher, and has been a pioneer and leader in the field of mediation for almost 40 years.
In his speech, Ken will cover the timely subject matter of his latest book “Politics, Dialogue & the Evolution of Democracy”. As a further benefit to conference attendees, and due to the generous sponsorship of SCMA President Jack Goetz and his company Educational Solutions 4 Change, and SCMA President-Elect and her company the Reddock Law Group, we have a special offer for conference attendees!
The first 100 registrants of this year’s Annual Conference will receive PRIORITY to purchase Ken’s book at 50% off and will have the opportunity to attend Ken’s exclusive book signing during the conference luncheon on Saturday!
To receive this special offer you must:
Be one of the first 100 attendees to register for the 2018 Annual Conference
Once registered, attendees will receive a link from SCMA to go online, reserve and pay the 1/2 price, while supplies last!
September is a month associated with learning for me. It is a new academic year (well, actually, my first class this fall was August 20!) and as my family points out, I have spent most of my life either working towards a degree or teaching in a degree program! At SCMA, it is our month to start putting together the largest gathering of mediators in the region as we host our Annual Conference at the LA Hotel on November 2 and 3 at the LA Hotel. For me, I am like a kid in a candy store when it comes to helping our President-elect, Angela Reddock-Wright, and our immediate Past President, Jason Harper, put together the program.
First I start dreaming…who would I like to see? In mediation, I dream big…in my ideal world, I would like to have Ken Cloke at the conference, because I feel like I am a better human being after every time I talk with him. Then I would sure like Woody Mosten, because he is such a master teacher. But I keep dreaming…having a revered name in community mediation, Avis Ridley-Thomas, would be fantastic, but I also so respect what former SCMA President Wendy Kramer has done in helping mediators build their practices. And then if I could have my colleague, Professor Lisa Klerman there as well, someone from whom I have learned so much. Those of you who saw her opening remarks at our Employment Mediation Institute in May know just what I mean.
Okay, you can pinch me and wake me up now, and yes, our SCMA Conference this fall is all those great speakers and many more. And to further add the American Arbitration Association and their mediate.org division putting on our Advanced Track, with AAA’s President and CEO, India Johnson, combining on a closing plenary with some of our friends at California State University at Dominguez Hills, Pepperdine, and USC, I think my candy appetite will be satiated! I join with the membership in thanking Angela and our Executive Director, Anne Sawyer, in putting all of this together.
With the divisiveness across the United States so prevalent today, it has made us all “up our game” in facilitating dialogue in our peacemaking. The Conference theme, “The Emergence of the Modern Mediator,” allows us to tackle those issues head-on. In part, the release of Ken Cloke’s latest book, “Politics, Dialogue and the Evolution of Democracy: How to Discuss Race, Abortion, Immigration, Gun Control, Climate Change, Same Sex Marriage and Other Hot Topics,” has given us a special opportunity to open our Conference with Ken speaking to those very issues. As a special treat, my company (Educational Solutions 4 Change) and Angela’s firm (Reddock Law Group) are sponsoring paying ½ the cost for Ken’s book for the first 100 registrants for the Conference and Ken has agreed to a lunch-time book signing for attendees who are interested.
I look forward to seeing everyone at the Conference. In the meantime, we have had more interest in serving on the SCMA Board than we can recall in recent history, with three incumbents amongst nine candidates running for five open seats. I am so gratified by the interest in our community in volunteering to continue to further the amazing work of our non-profit organization. And if you were not amongst the group that is running for the Board, perhaps we can get the benefit of your insight by getting you to vote! Ballots will be sent out within the next week, and we need our membership to participate; so please, help us the best way you can by voting for your ongoing leadership.
On August 9th SCMA Members, Past Presidents, Board Members and friends gathered at the Bonaventure in downtown LA for the SMCA 2018 Annual Summer Mixer. Held on the beautiful outdoor private patio of the Bonaventure Brewing Company the event celebrated our SCMA members and gave everyone a chance to network, laugh and have some fun with colleagues and friends. Recent graduates of the SCMA Mentorship Program were introduced and received their Graduation Certificates.
The highlight of the evening was the presentation of the 2017 SCMA President’s Award by current President Dr. Jack Goetz and Past-President Jason Harper to Forrest “Woody” Mosten who was honored for his work in providing divorce mediation training as well as commemorating the 10th year of the SCMA Education Foundation which was created in his honor. The SCMA Education Foundation provides conflict resolution libraries to dispute resolution centers, non-profits and universities. Woody’s acceptance speech highlighted the future of mediation as he encouraged the mentees who had been acknowledged earlier to share with us their hopes and goals for their future mediation practices. The Foundation also had a highly successful fundraising “Wine Pull” at the Soiree where donated wines were sold off to attendees who paid $25 each “pull” of a bottle off of the table without being able to see the label. This mystery wine event was a big hit! Overall, it was another wonderful SCMA event and great opportunity to meet, network and dialog with mediators and supporting professionals from Los Angeles, Orange and San Diego Counties!
We are pleased to announce the call for nominations for the five (5) available seats on the 2018-2019 Board of Directors of the Southern California Mediation Association. The SCMA is seeking candidates that have an interest and/or background in finance, programming and membership.
Service on the SCMA Board will help you grow personally and professionally, gain unique experience, and provide an opportunity to drive the decisions of our organization.
Any member of SCMA who will have been a member of the organization for at least one year prior to commencement of the next term is eligible to serve on the Board of Directors. Nominations must be in writing and should be accompanied by a proposed candidate’s statement and photo. The candidate’s statement should be 200 words or less and include the candidate’s background, experience, and the reasons the candidate wishes to serve on the Board. Nominations must be submitted no later than 4:00 p.m. on Monday, August 27, 2017. Ballots will be sent out to members by September 4, 2018 and the election results will be announced at the Annual Conference on November 2-3, 2018.
We have formed a Nominating Committee to nominate candidates for the five open seats on the board. The Nominating Committee consists of Past President Jason Harper, President-Elect Jack Goetz, President-Elect, Angela Reddock-Wright, and Non Board Members Stacey Lisk and Wendy Forrester.
Nominations should be submitted by email to following:
It is such an honor to serve as the current President of SCMA, an organization whose historical impact has been largely unchronicled until our recent release of the updated About SCMA page. A big thank you to all of our past presidents who served as the inspiration in creating our updated history, and a special thank you to our friends, Lee Jay Berman, Woody Mosten, and Peter Robinson, for filling in the gaps for a history that has been largely anecdotal to date. I hope you will take this opportunity to briefly review that and think about what role you would like to take to advance our field.
I am partially commenting on that because we have issued our annual “Call for Nominations” for SCMA Board positions that are up for election this fall. So many of our members have found it rewarding to serve on the SCMA Board, including me, and serve the community. As an educator, I have always found the intrinsic value in helping my constituents further their careers and achieve their goals, so my time at SCMA has been focused on just that; helping former President Wendy Kramer create the Mentorship Program and helping those new to the field build their skills and find their way to establishing their practices. Ultimately, our work at MC3, the mediation certification organization SCMA continues to support and build (whose progress will be further discussed at the Annual Conference this November) will be another step towards helping the field. If you have a passion, or even if you have ever thought “SCMA should be doing this or that,” this may be the time to pursue that passion with the help of the largest professional mediation organization in the region. If you have the time and interest, please consider answering the “Call.”
But first, our traditional annual party known as the Summer Soiree occurs this Thursday evening, August 9th, at the Bonaventure Brewing Company. Join your colleagues and friends in what promises to be our largest such event ever! President’s award winner Forrest “Woody” Mosten will be honored for his achievements, we will be honoring our recent class of graduates from the SCMA Mentorship Program, and there will be plenty of food and refreshments for everyone. If you joined SCMA in part to network, this is your event!
For all of you, I hope you have had a great summer and I look forward to seeing you this Thursday.
SCMA Former President, Phyllis Pollack, was kind enough to provide the following Legislative update:
On July 18, 2018, SB 766 was signed by Governor Brown. It enacts new Sections 1297.185-1297.188 to the Code of Civil Procedure. These statutes now allow for attorneys admitted to practice in a foreign jurisdiction (i.e. outside of the United States) who are in good standing to provide legal services in an international commercial arbitration or related conciliation, mediation or alternative dispute resolution proceeding as long as certain conditions are met as set out in the statute. Essentially, the foreign attorney must associate in local counsel who shall actively participate in the matter.
As I was growing up, my father would tell me stories about his upbringing in Watts. We spoke about all types of things like how the landscape was much different and how guns were rarely used to settle disputes in his day, but he took a more serious tone when he spoke about law enforcement and their role in the community then. He shared many of his personal encounters and ultimately would share his memories of the Watts riots. I was familiar with the critical and jaded lens he viewed law enforcement through having had my own experiences to confirm this perspective. Then, in the 90’s, I experienced the Rodney King riots. Like so many in the inner city of Los Angeles, I was disappointingly vindicated about my views regarding law enforcement and flashbacks of my father’s days in Watts further reinforced this perspective.
Despite several harsh interactions, I was fortunate enough to have a few positive encounters with law enforcement that helped to counterbalance my previous experiences. When I was asked to help create the pilot for a program designed to mediate disputes between law enforcement and the community, I was skeptical at first, but then I thought about my trajectory and how a simple conversation could lead to a vastly different outcome. Accomplishing this has become a personal goal.
The City Attorney’s Dispute Resolution Program (DRP) has a long-established history, beginning in 1989, of conducting mediations of all types; RSO, Community, and most recently, the program I am fortunate to have been a part of launching, their Community Police Unification Program (CPU). The CPU Program started as a pilot in 2012 with the goal of using mediation to facilitate difficult conversations, which can sometimes go awry at the initial point of contact, between LAPD and the community.
During an encounter with a community member, the officer is in a position of authority and power while the citizen is clearly not. Personalities, emotional intelligence, perceptions, and biases can convolute this experience. Prior to CPU, community members could register a complaint, which would be routed to Internal Affairs, and would more often than not result in a letter stating their claim was “unfounded”. Perception is reality, and community members that truly felt aggrieved gained no satisfaction and the police officer involved gained no opportunity to grow from these experiences.
Mutual understanding is our program’s objective and the CPU creates a space for this to occur. The process is relatively straight forward. Community complaints are routed to Internal Affairs and sorted; cases involving an arrest, physical contact, racial epithets or that are otherwise egregious in nature do not have the option for CPU mediation. Cases involving discourtesy and allegation of bias get routed to the CPU. A Coordinator from the LAPD side gets in touch with the officer to get their buy-in and a coordinator from the City Attorney’s office reaches out to the community member. Once both parties are committed, mediators are assigned, and a date is set. Let the community unification begin.
While a noble cause, this is no small feat. These mediations are quite different than traditional mediations. Typical mediations involve participants that have some vested interest in repairing the relationship. Often, there exists a tacit investment and ongoing interest between the parties that operates as an unseen undercurrent to the relationship. This is noticeably absent in CPU mediations, making these conversations tenuous and more difficult to navigate.
The first year of the program produced many lessons and best practices that continue to inform the program today. One such lesson has been the importance of pairing mediators according to the personalities in the room. Success of CPU mediations largely depend on the mediator’s ability to adapt to the personalities.
This lesson was hard won. Although most of our mediations have been successful, there is always room for improvement. The program has had some mispairings that resulted in less than desirable outcomes. In response, the LAPD coordinator and I began to discuss the personalities of the parties in more depth. Based on conversations and descriptions of personalities, I would select mediators that would balance the dynamics in the room. This more thoughtful approach seemed to improve results. But, there was no way to measure these pairings and therefore no way to measure if the correlation between participants resulted in greater success.
The program was able to secure a COPS grant from the U.S. Department of Justice in 2013. Part of the grant deliverables was to develop a tool that captures the knowledge-based process that was happening intuitively in the pairing of mediators in CPU cases. CPU administrators came up with the name “Responsivity Tool” because it was designed to measure the effectiveness of the program’s responsiveness related to mediator pairings in these mediations.
Searching for a way to measure and evaluate a mediator’s style, we came across Dr. Riskin’s assessment grid. The grid works along two continuums.
“… One continuum concerns the goals of the mediation. In other words, it measures the scope of the problem…The second continuum concerns the mediator’s activities. It measures the strategies and techniques that the mediator employs…” (Riskin 1996).
When defining the goal of measuring the problem, Riskin’s continuum ranges from “narrow” to “broad”. When evaluating mediator styles, Riskin’s continuum ranges from “evaluative” to “facilitative”. Once measured and plotted the result falls into a grid containing four quadrants pertaining to mediator styles: Evaluative Narrow, Evaluative Broad, Facilitative Narrow and Facilitative Broad.
Riskin accurately states that with any mediation a particular issue can have a primary and secondary focus. This is also true with CPU mediations; cases involving discourtesy typically require the mediator to start narrow and work toward the broad end. Cases involving allegations of bias typically require mediators to start broad and move toward the narrow end.
CPU mediations involving allegations of discourtesy have a particularly narrow focus on the event that occurred. A transactional or superficial mediation can begin and end without moving from the event, offering no more than an explanation of police policy supporting what occurred. Mediators must work toward opening the conversation to include the secondary broader benefits that can also arise which is a goal of the program.
CPU mediations involving allegations of bias, oftentimes, have a particularly broad focus typically including personal and community trauma that have culminated at the recent point of contact. A transactional mediation, in this case, can begin and end without moving away from the general trauma never actually discussing the specific event that occurred. Mediators, in this case, must start broad working their way down to the specific incident and migrate back toward a broad community focus.
In both instances, the goal is for the participants to feel heard, understood and gain new perspectives from seeing through the other’s lens, if even for a moment.
To accomplish this outcome, having a mediator with the right skill-set is essential. We utilized the MCI (mediator scoring index) to rate our mediators. The MCI “…is designed to assist mediators in understanding the particular approach or style that they tend to use during the mediation process” (Krivis & McAdoo 2000). These evaluations are scored and catalogued for future reference.
Once we were able to uniformly identify our mediator’s style and approach, we began to develop questions that would allow us to measure the difficulty of the mediation. Questions include length of residency in the area or length of years on the job for officers, tone of the conversation, does the party seem willing to mediate, etc.
The coordinators gather answers to these questions and rate the participants on a scale ranging from 5 to 15; the lower score being more amenable and likely to experience the benefits of mediation and the higher score requiring more active involvement from the mediator to achieve such outcomes.
The assumption is that there is a mediator style that is a “best fit” when evaluating participants in conflict and when appropriately paired satisfaction among participants will improve. To test our tool and gather data we took participants with a higher score and paired them with mediators that fell into the strong and/or Average Facilitative Broad categories on Riskin’s grid. Conversely, participants that have lower scores were paired with mediators that fell into the Facilitative Narrow and Broad categories, and participants in the midrange were paired with Facilitative or Evaluative Broad mediator styles. Currently, the program’s pool of CPU mediators is shallow, which at times leads to pairing mediation styles that don’t align with the parties’ scores which impacts the success level of the mediation. The program collects exit surveys with each mediation and will be able to track the level of effectiveness as we continue to collect more data.
The program has commissioned a professor from USC, to conduct a program evaluation in part to evaluate the effectiveness of the Responsivity Tool.
The process is imperfect, and challenges have been noted that offer opportunity for improvement; I have listed a few below:
Pool of Mediators – mediators are volunteers and ones with the skill set to be successful in these types of mediations are of limited supply. Due to this constraint, we have sometimes had to pair meditations based on availability and not on the grid. However, the random pairings did allow for various styles to be paired with a variety of cases. Hopefully the analysis of the Responsivity Tool will help to clarify which pairings were successful.
Assessment of the Participants – the questions used to assess the parties may not be in depth enough or even correlate to a challenging mediation.
MCI Style Assessment – Currently, the program administers the mediator assessment once at the time mediators are selected for the CPU. Styles can evolve and develop over time and the best mediators evolve depending on the case. Therefore, pinning down which style is most appropriate for which case type can be elusive. Continued evaluations on a periodic basis can remedy.
Counter Balancing Biases – Providing equal exposure to both community and LAPD culture has been difficult. Empathy is a key attribute of any successful mediator and we seek to stimulate this empathy by exposing our mediators to various aspects of community and LAPD life. Because LAPD is an institution, they have a structure in place that easily replicates the dangerous and complex decisions officers need to make daily. As a part of CPU mediator training we require our mediators to become familiar with LAPD policies and go through use-of-force training simulations. On the other hand, we don’t have a similarly balanced structure representing the community’s perspective. The mediators themselves come from the community, but often come from communities other than the ones of CPU participants and therefore with very different life experiences. It’s difficult to measure how exposure to LAPD policies and training simulations manifest in mediation, but it’s possible that in the absence of something comparable on the community side this could lead to bias toward law enforcement within the mediation setting.
Because the program is always learning and adapting to become more effective, it has produced many beneficial outcomes for participants. It’s our hope and intent to share our lessons learned and best practices with other organizations while continuing to grow and develop ourselves.