On June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create an exception to mediation confidentiality (Study K-402).  All public comments are due by September 1, 2017.

The Tentative Recommendation would be set forth in a new California Evidence Code Section 1120.5 that would allow the discovery and admission of previously confidential mediation communications where relevant to proving (or disproving) a claim of lawyer misconduct or malpractice. If the CLRC proposal is adopted by the Legislature:

1. The exception would apply only in State Bar disciplinary proceeding, a claim for damages due to legal malpractice, or an attorney-client fee dispute.
2. The exception would NOT apply in resolving a claim relating to the enforcement or rescission of a mediated settlement agreement or in a suit for specific performance of the settlement.
3. The exception would apply only to attorney misconduct in a professional capacity; that is, “when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation — that is, an obligation the attorney has by virtue of being an attorney — in the course of providing professional services.”
4. The exception would only apply to alleged misconduct in representing a client, not in serving as a mediator.
5. The exception would apply only where the alleged misconduct occurs in a mediation context.  A “mediation context” includes any alleged misconduct that may occur at any stage of the mediation process, such as the during a mediation consultation, a pre-mediation telephone call, a mediation brief, a joint session, a private caucus with or without the mediator present, a mediation related telephone call, and the like.  The issue is whether it relates to the mediation, and not the time or date of the alleged misconduct.
6. A mediator generally could not testify or provide documentary evidence pursuant to the exception. That is, Evidence Code section 703.5 remains in effect and a mediator’s writings (personal notes and substantive emails and other communications) are not admissible or discoverable.
7. A litigant could not go to another source to obtain or learn the content of a mediator’s writings.  Thus, a litigant could not go to a third-party source such as an email provider to obtain an email string which includes the mediator’s email messages containing substantive content unless that portion of the email string can be effectively redacted to protect the mediator’s substantive comments.
8. The same standard — “relevancy” — would govern both the admissibility and discoverability of evidence of the alleged misconduct.
9. The exception would limit the extent of disclosure to “… only the portion of the communication necessary for application of the exception.”
10. A court could — but is not obliged — to use judicial tools such as sealing records, in camera proceedings, protective orders, and redaction to prevent public disclosure of mediation evidence.
11. Mediation participants (if their whereabouts are available) would receive notice that a suit has been filed and thus be able to take steps to prevent improper disclosure of mediation communications.
12. The exception would apply evenhandedly to the evidence — both to prove and disapprove a claim of alleged malpractice.
13. The exception would apply to all types of evidence, not just to communications between the attorney and client during a private caucus.
14. The exception will apply to every type of mediation in all fields of law; no exceptions such as for family law mediation or mediations conducted under the Dispute Resolution Programs Act will be made.
15. The proposed legislation is to have no effect on the extent to which a mediator is or is not immune from liability under existing law.
16. The exception has no provision for the issuance of sanctions by a court against a party who brings an unsuccessful malpractice action.
17. The exception will apply only prospectively — to mediations occurring after its operative date.

See Tentative Recommendation at pages 133-141.

I urge everyone to peruse, if not read, the full Tentative Recommendation and to provide comments to the California Law Revision Commission, 4000 Middlefield Road, Room D-2, Palo Alto, Cal 94303-4739, telephone: 650-494-1335, website: http://www.clrc.ca.gov/.  Comments may be emailed to commission@clrc.ca.gov.

… Just something to think about.

The most complex organ of the human body is the brain. It oversees every bodily function and lets individuals interact with one another. Research into the brain provides an in-depth look at human nature and an understanding of human behavior.

Neuroscience is the study of the nervous system. It explains why behavior changes under stress. These changes relate directly to fluctuating serotonin levels in the brain. In other words, stressors lead to the instability of serotonin levels. This impedes a rational decision on a resolution in a taxing situation.

What happens in a dispute?

Disputing parties often believe they have the bulletproof facts, the proper reasoning, and the soundest position in the disagreement. This frame of mind can intensify the conflict. Quite typically, one of the parties presents a constructed resolution and outlines what they deem a logical point of view. When this resolution is rejected, the presenting party is bewildered by their adversary’s conceived irrational reaction.

Unreasonable expectations and disappointment can form by assuming that one’s well-crafted argument and dispute resolution would never be rejected by the receiving party. When a proposal is rejected, the parties stop listening to any other views outside their own. When this occurs, getting the two sides to agree on a resolution is a daunting and difficult task.

The role of the mediator

A mediator evaluates the interaction and body language of the parties by contemplating the mediation style that will be most effective in resolving the dispute. Neuroscience provides sound research into the different methods to achieve this. Facilitating becomes a vital technique through the course of the dispute resolution process by allowing the mediator to be aware of the needs and interests of the parties.

The negotiating process commences by identifying what drives the parties’ thought process, understanding their relationships, and determining the compelling factors behind the dispute. The matter’s importance to each party is also considered. The mediator identifies the parties emotional and logical processes, allowing the parties to listen, acknowledge, and respect each other’s interpretation of the dispute.

Enormous Implications

These findings have enormous implications in a dispute resolution. Parties creating a resolution based on reasoning alone are destined to fail. The negotiation process involves understanding the tangible and emotional factors making up the dispute. Relying on a logic based argument creates unreasonable expectations, speculations, and opinions.

A mediator must create a vision for the parties to understand each other’s points of view. This allows the barriers separating the parties to break down, making for a sound decision. By creating a safe environment, the parties come to make the decision on their own accord. At this point, additional reasoning tactics and further persuasion are not necessary. People do not base their decisions on logic, people formulate decisions based on their well-being.