On September 28, 2017, the California Law Revision Commission met to review the public comments it had received to its Tentative Recommendation (issued in June 2017) following its study to create an exception to mediation confidentiality (Study K-402). The clear majority of the comments opposed the Tentative Recommendation. Retired Judge David Long testified that he counted 23 organizations and 439 individuals (or total of 462) against the Tentative Recommendation and only 11 to 16 organizations and persons in favor of it.
Given the above, Chief Deputy Counsel Barbara Gaal listed five (5) possible options that the Commission could consider (Memo 2017-52): (1) Proceed with the current proposal; (2) Provide an informational report only to the legislature; (3) Limit the Exception to private attorney-Client Discussions in a mediation context (using the language of the original AB 2025 bill); (4) Develop an Informed Consent Approach and Circulate a Revised Tentative Recommendation; or (5) Revisit the Full range of Options Raised in This Study.
Bearing in mind that the Commission has been studying this matter since the Spring of 2013 and that more than 3500 pages have been generated in the many memoranda issued by Ms. Gaal, the “Sunk Cost “fallacy kicked in. That fallacy is defined as:
Individuals commit the sunk cost fallacy when they continue a behavior or endeavor as a result of previously invested resources (time, money or effort) (Arkes & Blumer, 1985). This fallacy, which is related to status quo bias, can also be viewed as bias resulting from an ongoing commitment. For example, individuals sometimes order too much food and then over-eat ‘just to get their money’s worth’. Similarly, a person may have a $20 ticket to a concert and then drive for hours through a blizzard, just because s/he feels that s/he has to attend due to having made the initial investment. If the costs outweigh the benefits, the extra costs incurred (inconvenience, time or even money) are held in a different mental account than the one associated with the ticket transaction (Thaler, 1999). (https://www.behavioraleconomics.com/mini-encyclopedia-of-be/sunk-cost-fallacy/)
After listening to members of the public testify for over two hours, the Commissioners, considering all the testimony they have heard both at this meeting and all prior meetings, acknowledged that much opposition exists to their Tentative Recommendation. Yet, at the same time, they felt duty bound to address the question that Justice Chen proposed in his concurring opinion in Cassel v. Superior Court (2011) 51 Cal 4th 113,139-140:
This case does not present the question of what happens if every participant in the mediation except the attorney waives confidentiality. Could the attorney even then prevent disclosure so as to be immune from a malpractice action? I can imagine no valid policy reason for the Legislature to shield attorneys even in that situation. I doubt greatly that one of the Legislature’s purposes in mandating confidentiality was to permit attorneys to commit malpractice without accountability. Interpreting the statute to require confidentiality even when everyone but the attorney has waived it might well result in absurd consequences that the Legislature did not intend. That question will have to await another case. But the Legislature might also want to consider this point.
So, they quickly decided that options 2, 4 and 5 were off the table: they were not going to take a fresh look at the whole matter again (after having spent 4 years on this (option 5)), and besides the notion of informed consent (option 4) had been voted on and vetoed several times previously. Nor were they going to provide merely an informational report (Option 2) given the time and effort put into this study.
This left Options 1 and 3 to consider. While some of the Commissioners were in favor of option 3- although, it, too, had its difficulties, the point was raised that this option (which was to limit the admissible communications as those directly between the attorney and client as set out in the original legislative bill AB 2025), had been vetted and vetoed by the Commission early on in this process.
The Commission was left with option 1—to proceed with the current proposal. But, one of the members of the audience had suggested that the exception be limited to allowing such evidence be introduced ONLY into state bar disciplinary proceedings. The Commissioners decided that this should be explored and requested its Chief Deputy Counsel to explore the notion of limiting the exception as applying ONLY in state bar disciplinary proceedings. The Commissioners also requested its Chief Deputy Counsel to review the various public comments suggesting minor changes in language to the proposed statute and to discuss these suggestions in a memorandum.
Consequently, the CLRC will meet again to discuss (1) limiting the exception to state bar disciplinary proceedings only; and (2) tweaking the language of the statute on December 1, 2017 in Sacramento.
One of the Commissioners noted that the CLRC should not really worry about what happens to its recommendations in the legislature. It should simply take on the task assigned, do the best job possible and report back to the legislature.
So, despite the extensive opposition to the proposed legislation, it appears that it will go forward to the legislature in some fashion. Another example of the Sunk Costs Fallacy in action.
… Just something to think about.