CLRC Proposal to Strip Certain Mediation Communications of their Confidentiality Protections Draws Substantial Public Comment

September 19, 2017/in Articles, Mediation Confidentiality, Writer's Corner /by Lee Blackman

The California Law Revision Commission’s proposed legislation — which would strip mediation communications of their confidentiality where they are relevant to a claim of legal malpractice arising out of a mediation — has been available for comment since June of this year. And it has drawn a great deal of comment, both pro and con.

Much of the comment is presented in CLRC Staff Memorandum 2017-51.

Included is opposition from the Honorable Raymond M. Cadei, of the Civil and Small Claims Advisory Committee of the Judicial Council of California. In these Comments, this Committee of the California Judicial Council expresses concern that “there has not been a sufficient showing that attorney misconduct in mediation is frequent enough to justify the risks” that adoption of the proposal “could discourage both participation and candid discussions in mediation”; “could discourage individuals from serving as mediators, particularly in court-connected mediation programs; and might “increase the number of malpractice claims brought” as a “means of providing leverage to change settlement agreements reached in mediation”.

Mediator Jeff Kichaven, on the other hand has applauded the proposal in an article titled A California Correction? Legislature Will Consider Allowing Attorney Malpractice Proof from Mediation. Mr. Kitchaven contends that after decades of experience in state and federal jurisdictions that do not protect mediation communications from discovery and disclosure as comprehensively as California, “we can conclude: Statutory confidentiality is not necessary for effective mediation.”

The matter will be considered again by the CLRC at its next meeting, which will be on September 28, 2017, in Sacramento. The meeting agenda is available here.

Mary Culbert is the 2017 L. Randolph Lowry Award Recipient

August 30, 2017/in Awards, News & Announcements /by Anne Sawyer

Congratulation to Mary Culbert who is the 2017 Recipient of the L. Randolph Lowry Award.

Every year the SCMA presents the L. Randolph Lowry Award to a member of the dispute resolution community who has honored and inspired us through their passion and dedication to education in the field of dispute resolution.

The award is presented at the Friday Evening Kick-off Dinner Reception on Friday October 20, 2017. Come join us as we celebrate Mary.

A Call For Nomination Of Candidates For The 2017-2018 SCMA Board of Directors

August 7, 2017/in News & Announcements /by Anne Sawyer

Dear Members:

I invite you to submit nominations for the four available seats on the 2017-2018 Board of Directors of the Southern California Mediation Association.

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 Friday, August 18, 2017.

We have formed a Nominating Committee to nominate candidates for the four open seats on the board. The Nominating Committee consists of President Jason Harper, President-Elect Jack Goetz, Board Member Terri Lubaroff, Board Member John Irwin, and non-board members: Sally Patchen and Wendy Kramer.

Nominations should be submitted by email to following:

Secretary Leslie Kushner kushnermediation@gmail.com
President Jason Harper at jasonharper81@gmail.com
President-Elect Jack Goetz at jgoetz@law.usc.edu
With copies to Executive Director Anne Sawyer at anne@scmediation.org.

Ballots will be sent out to members by September 1, 2017 and the election results will be announced at the Annual Conference on October 21, 2017.

Please feel free to contact with any questions.

Sincerely,

Jason Harper

President

Southern California Mediation Association

August 2017 President’s Message From Jason Harper

August 1, 2017/in From The President /by Anne Sawyer

Hello Everyone,

I hope you all are having a great Summer and are gearing up for a great Fall! Since I have last spoken to you, the SCMA had our annual Employment Mediation Institute at Pepperdine in late June. On behalf of the SCMA, I would like to send a huge “Thank You” to Pepperdine University for hosting our event, the law firm of Atkinson, Andelson, Loya, Ruud and Romo for sponsoring the event, and our esteemed panelists for their wonderful insights into the different aspects of employment disputes. There are a few things going on as we head into the second half of 2017 and I’m very excited to let you know about them.

On August 10, we are having our annual Summer Mixer at the Wokcano Restaurant in Santa Monica! This is a great opportunity to meet and catch up with your fellow SCMA members amidst great food and great atmosphere. The Summer Mixer is free to SCMA members, so I encourage all to attend. Everyone must register to attend here:

https://www.scmediation.org/scma-calendar/npe-events/?eid=2291

We are also one month closer to our 29^th Annual SCMA Fall Conference! This conference promises a great number of programs that will give you more tools to improve and increase your practice. In addition, William Ury, co-author of the book “Getting to Yes”, will be the recipient of our Cloke-Millen Peacemaker Award and will be delivering the keynote speech at the conference! The SCMA Fall Conference will be held at the L.A. Hotel Downtown in Los Angeles on October 20 and 21, 2017. Information regarding Registration and Venue here:

https://www.scmediation.org/conference-2017/

I would also like to take the time to recommend the Professional Development Groups (PDG) in SCMA. Mediation can be a lonely profession and it is a wonderful resource to be able to gather with like-minded mediators in your area and talk about interesting cases, share marketing strategies, and even gain some new friends. Please look out for a PDG in your area and be a part of the growing mediation community. And if you don’t see a PDG in your area, create one! Please see our website calendar here:

https://www.scmediation.org/calendar/category/scma-events/

I look forward to seeing you at our next event.

Best Regards,

Jason A. Harper, President

Southern California Mediation Association

Law Revision Commission Draft Recommendation on Mediation Confidentiality — Public Comments Due By September 1, 2017

June 27, 2017/in Mediation Confidentiality, Writer's Corner /by Phyllis Pollack

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:

The exception would apply only in State Bar disciplinary proceeding, a claim for damages due to legal malpractice, or an attorney-client fee dispute.
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.
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.”
The exception would only apply to alleged misconduct in representing a client, not in serving as a mediator.
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.
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.
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.
The same standard — “relevancy” — would govern both the admissibility and discoverability of evidence of the alleged misconduct.
The exception would limit the extent of disclosure to “… only the portion of the communication necessary for application of the exception.”
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.
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.
The exception would apply evenhandedly to the evidence — both to prove and disapprove a claim of alleged malpractice.
The exception would apply to all types of evidence, not just to communications between the attorney and client during a private caucus.
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.
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.
The exception has no provision for the issuance of sanctions by a court against a party who brings an unsuccessful malpractice action.
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.

June 2017 President’s Message From Jason Harper

June 12, 2017/in From The President /by Anne Sawyer

Hello Everyone,

I would like to send a huge thank you to all of you who attended the jam-packed month of events in May for the SCMA. From the Peer Mediation Celebration, to the Past President’s Breakfast, to the Cultural Intelligence event, I hope you got as much out of our programming as I did! In the month of May, the SCMA has had programming in Downtown Los Angeles, Santa Monica, and the city of Orange. Moving forward, I look to have more events in areas more accessible to our entire membership, in addition to webinars that will allow you to attend an event without leaving your own home or office.

I would also like to take the time to commend all the Professional Development Groups (PDG) in SCMA, particularly our PDG leaders. Mediation can be a lonely profession and it is a wonderful resource to be able to gather with like-minded mediators in your area and talk about interesting cases, share marketing strategies, and even gain some new friends. Please look out for a PDG in your area and be a part of the growing mediation community. And if you don’t see a PDG in your area, create one! Please see our website for more information on PDG’s.

On June 20, we will have the Employment Mediation Institute at the Pepperdine University, West LA campus. Join us as we discuss the evolving employment law landscape, along with practical implications and applications for practitioners and mediators. This event is co-sponsored by the law firm Atkinson, Adelson, Loya, Ruud, and Romo as well the Straus Institute for Dispute Resolution and we thank them all for their support. (Register Here: https://www.scmediation.org/scma-calendar/npe-events/?eid=1151)

We are one month closer to our 29^th Annual SCMA Fall Conference! As I said last month, I am pleased to announce that William Ury, co-author of the book “Getting to Yes”, will be the recipient of our Cloke-Millen Peacemaker Award and will be delivering the keynote speech at the conference! The SCMA Fall Conference will be held at the L.A. Hotel Downtown in Los Angeles on October 20 and 21, 2017. More information regarding RFP’s, hotel stays, and registration pricing here: https://www.scmediation.org/conference-2017/

As we head into the summer months, I would be remiss if I didn’t congratulate the new graduates of mediation and dispute resolution programs at the various community centers, colleges, and universities in California. I hope this is the beginning of a fruitful life and work as a peacemaker. We need you all now more than ever.

Have a great summer and I look forward to seeing you at our next event.

Best Regards,

Jason A. Harper, President

Southern California Mediation Association

May 2017 President’s Message from Jason Harper

May 1, 2017/in From The President /by Anne Sawyer

Hello Everyone,

This has been an amazing past few weeks for SCMA. First, I’d like to thank Dan Ben-Zvi for his program for our membership during Mediation Awareness Week. It was highly informative and received rave reviews. Also, congratulations are in order to the SCMA Education Foundation for reaching the challenge grant of $1,000 set by the SCMA! Even though this grant campaign has ended, it is always a good time to donate to the SCMA-EF for their contributions to peer mediation programs in middle schools and high schools in Southern California.

April also saw some great news pertaining to the SCMA Fall Conference. I am pleased to announce that William Ury, co-author of the book “Getting to Yes”, will be the recipient of our Cloke-Millen Peacemaker Award and will be delivering the keynote speech at the conference! The SCMA Fall Conference will be held at the L.A. Hotel Downtown in Los Angeles on October 20 and 21, 2017. More information and Early Bird Registration is now open here: https://www.scmediation.org/conference-2017/

May promises to be a jam-packed month for SCMA! We have 4 major events taking place this month and they all promise to be something you don’t want to m

May 4: Our 5th Annual Celebration of Peer Mediation Programs

Come and support peer mediation programs in middle and high schools! This event will take place at the Galen Center at USC from 6-8pm. Entry, parking, and dinner is provided free of charge thanks to the USC Good Neighbors Program and the Institute for Nonviolence in Los Angeles.

May 6: Our 3rd Annual Past President’s Breakfast

The SCMA is celebrating its past presidents for building the foundation of SCMA. This event takes place at the Sonoma Wine Garden in Santa Monica from 10am-Noon.

May 18: The Employment Institute

Join us as we discuss the evolving employment law landscape, along with practical implications and applications for practitioners and mediators. This event is taking place at the Pepperdine West LA campus. This event is co-sponsored by the law firm Atkinson, Adelson, Loya, Ruud, and Romero as well the Strauss Institute for Dispute Resolution.

May 25: Cultural Intelligence

Dr. Michele Villagran will be discussing how we can develop skills to effectively handle cultural barriers that you face in your position. This event will take place at Chapman University in the city of Orange from 6-8pm.

I look forward to seeing you at our next event.

Best Regards,

Jason A. Harper, President
Southern California Mediation Association

March 2017 President’s Message From Jason Harper

March 28, 2017/in From The President /by Anne Sawyer

Hello Everyone,

It feels like the year is flying by already! I would first like to thank Phyllis Pollack and Lee Blackman for their highly informative program on Feburary 11 where they highlighted the latest updates regarding mediator confidentiality from the California Law Review Commission. I look forward to any update they will provide moving forward.

I would also like to let you all know that the SCMA has issued our 3^rd annual challenge grant to the SCMA Education Foundation (SCMA-EF). The SCMA-EF is the charitable arm of the SCMA and their work centers on supporting Peer Mediation programs and the students who serve as mediators. Please go to www.scmaedfoundation.org for more information. If you act now, the SCMA will double your donation up to $1,000!

March looks to be another great month for SCMA. As you all know, Mediation Awareness Week begins on March 27 and we have a couple of noteworthy events planned. On March 29, there will be a special event at LA City Hall where the leaders of plaintiffs’ and defense attorney bars, the City Attorney, and a host of others will speak with the LA City Council on the importance of mediation in our community. Among the speakers present that day will be our own President-Elect, Dr. Jack Goetz, who will receive a Certificate of Commendation on behalf of SCMA. On the following night of March 30, Dan Ben-Zvi will present a program titled “Cutting Edge Mediation and Ethics” at the Santa Monica Doubletree Hotel. Please go to our website for more information on what promises to be a great program.

As the hub of the Southern California mediation community, the SCMA is very excited to celebrate Mediation Awareness Week. Mediation is often referred to as an “alternative” form of dispute resolution, but the fact is that more disputes are resolved by way of mediation than by court proceedings and arbitration combined. Despite that fact, mediation remains the least known and the most misunderstood form of dispute resolution by the public at-large.

Mediation Awareness Week provides an opportunity to educate the public about the value of mediation and the many quality mediation services that are available in Southern California. Our goal during Mediation Awareness Week is to remind the public that there is another way. In disputes ranging from neighbor issues, to personal injury, to special education services for children with special needs, we need to let people know that conflict is inevitable, but combat is a choice.

I look forward to seeing you at our next event.

Best Regards,

Jason A. Harper, President

Southern California Mediation Association

SCMA Issues Challenge Grant to SCMA Education Foundation

March 15, 2017/in News & Announcements, SCMA Education Foundation (SCMA-EF) /by Anne Sawyer

March 14, 2017

SCMA President Jason Harper recently wrote to you introducing the SCMA Education Foundation as the charitable and educational arm of the SCMA and its work supporting Peer Mediation Programs in our schools.

We’re delighted to let you know that SCMA has just issued its Third Annual Challenge Grant to the Foundation to support these programs and the extraordinary students who serve as mediators.

And you can help us meet that challenge. Just click here and contribute!

These students are absolutely compelling. They are well-trained in the principles and practices of mediation, they serve their schools as volunteers, they learn the essential life skills of effective communications and conflict resolution at an early age, and they model what they learn, changing the environment around them. They enjoy helping others. As one student said,

“I get to increase the mental wellness and health of everyone around me and/or save people a trip to expulsion because that’s not good.”

Peer mediators also think of mediation as a way of interacting, not just as a process for resolving a disagreement.

I’m writing to ask you to help us meet the 2017 Challenge and support peer mediation programs in our schools.

With your help we can give the experience of peaceful conflict resolution to students. Our goal is to raise $5,000 by April 30. If just 100 people contribute $50 each, we can reach the goal easily. And if you’d like to contribute another amount, large or small, just write it in. Every contribution makes a difference.

Click here to be one of the first to contribute. All contributions are important and support these programs.

You can make a difference in our schools. Please contribute generously.

Thank you. The students and the Foundation really appreciate it.

Sincerely,

Maria Simpson, Ph.D.
SCMA-EF Board Chair

www.scmaedfoundation.org

SCMA Education Foundation Update

February 22, 2017/in News & Announcements, SCMA Education Foundation (SCMA-EF) /by Anne Sawyer

Hello Colleagues,

I would like to share with you some information about the SCMA Education Foundation and their amazing efforts.

The Foundation is the 501(c)(3) charitable and educational arm of the SCMA, and this year we are celebrating its Tenth Anniversary and the extraordinary work it has done!

In the last ten years, its achievements have included providing materials for mediator training to universities and community mediation centers as well as supporting middle- and high-school peer mediation programs.

2016 was a stellar year for the Foundation. It:

raised about $20,000, including a generous grant from the Judicate West Foundation;
distributed funds to schools and other organizations that support peer mediation programs;
coordinated with SCMA and INVLA on panels and a celebratory dinner focusing on peer mediation;
and worked with LA Council on Human Relations to develop lesson plans on mediation and respectful communications for middle- and senior-high school students.
was recognized by the LA City Council with a Proclamation in support of National Conflict Resolution Day in October.
presented its Annual Directors’ Award in November at the SCMA Fall Conference to John Haas, Ph.D. for his work on international peacebuilding with college students.

This year, the 10th Anniversary, The Foundation has already embarked on an ambitious program of enhancing its operating systems, bringing on new board members, raising even more funds and supporting even more schools than last year, as well as establishing closer collaborations with other organizations in the area.

As SCMA President, former board member of the Foundation, and now Ex Officio Member of the Foundation Board, I have personally watched the Foundation grow and develop its programs and expertise, and I cannot urge you strongly enough to “Celebrate The First Ten Years” by contributing generously to support peer mediation programs and mediator training.

Go to the Foundation’s website www.scmaedfoundation.org and click on the links on the home page to the two wonderful videos that show just how much peer mediation programs mean to students and their schools and communities, and then click on the Blue Donate button to support these programs.

This year, more than ever, given the contentious communications environment and the increase in bullying in the schools, it is vitally important that we bring the skills and approaches of mediation, of respect for each individual, and of peaceful conflict resolution to our youth so they have these skills for their personal and professional success. It is only then that we create the more peaceful society we all want and need.

For those of you who may not be familiar with the Foundation, go to the website and see all the information there that makes it a central resource for mediation programs, and discover the gem that SCMA established ten years ago.

Be sure to contribute! Any and all amounts are welcomed and will support these vital programs. You can contribute in other ways as well. The Foundation welcomes people who would like to explore joining the board and helping to foster its programs.

Let’s make 2017 a real celebration with your contributions and a record number of Friends of the Foundation!

Best Regards,

Jason A. Harper, President

Southern California Mediation Association