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.
Recall that the California Law Revision Commission has proposed that California law be amended to strip mediation communications of the confidentiality protection they now enjoy if the communications become “relevant” to a malpractice case in which a client sues his or her lawyer for misconduct during a mediation. The new statute would also subject mediators to subpoenas demanding production of documents received by the mediator from the mediating parties where such documents (in the possession of the mediator) are arguably relevant to the legal malpractice case.
The Staff of the Law Revision Commission has recently summarized the supporting and opposing submissions received by the CLRC during the public comment period that ended on September 1. Memorandum 2017-52 (www.clrc.ca.gov/pub/2017/MM17-52.pdf[‘.
In this Memorandum, the Commission Staff characterizes the public comment on the Commission’s legislative proposal as “decidedly negative” and “unfavorable”. Memorandum 2017-52, p. 1. Staff’s remarkably candid — even courageous — memorandum, notes that “the degree of opposition to the Commission’s proposal suggests that careful reexamination of the competing considerations is in order.” Emphasis original. Staff Memorandum 2017-52, p. 12.
In summarizing the opposition to the proposal, the Staff states that:
The 155 pages of comments include scattered words of praise or appreciation for the Commission, its staff, its process, and its work on this study. In general, however, they do not have much positive to say about the Commission’s proposal.
Ten stakeholder organizations submitted comments opposing the tentative recommendation or expressing serious concerns about it. Among those organizations was the Civil and Small Claims Advisory Committee of the Judicial Council of California (hereafter, “Civil and Small Claims Advisory Committee”), the key group responsible for expressing the position of the California court system on matters affecting civil cases. Also included were two other particularly important groups that had not previously spoken up in this study: the Consumer Attorneys of California (“CAOC”) and the California Defense Counsel (“CDC”), which took the unusual step of submitting a joint
letter on the matter. . . .
In contrast, the only stakeholder organization expressing support for the tentative recommendation was the Conference of California Bar Associations (“CCBA”), which has championed the need for an attorney misconduct exception since well before this study began. . . . [Footnotes omitted. Memorandum 2017-52, pp. 6-8.]
In its final comments, the Staff also notes that:
the Commission should bear in mind that elected officials . . . will be understandably reluctant to do something that is firmly opposed by their constituents, as well as groups that speak for a sister branch of government (the Civil and Small Claims Advisory Committee and CJA). It might not even be possible to find a legislator willing to author a bill to implement the proposal. [Staff Memorandum 2017-52, pp. 33-34.]
It is fair to say that the Staff Memorandum summarizing the positive and negative comments on the proposed legislation candidly presents the case for and against the changes to mediation confidentiality the Commission has tentatively proposed. But the Staff Memorandum also carefully and forthrightly reminds the Commission that:
The opposition to the Commission’s tentative recommendation can only be described as overwhelming. It is not unanimous, but it is deep and widespread. California’s Mediation confidentiality statute may differ from those in other jurisdictions, providing greater protection in some respects, but a broad range of stakeholder organizations and many individuals appear to be well-satisfied with that approach and offer many reasons for their position. [Staff Memorandum 2017-52 at 33.]
The next meeting of the Commission is Thursday, September 28, 2017, in Sacramento. Details here. Comments on the Commission proposal may be directed to Barbara Gaal, Chief Deputy Counsel, California Law Revision Commission, either by mail, to 4000 Middlefield Road, Room D-2, Palo Alto, CA 94303; by fax, to 650-494-1335; or via email, to email@example.com.
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.
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”.
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.
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:
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:
We are also one month closer to our 29th 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:
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:
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 byvirtue 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.
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 firstname.lastname@example.org.
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 29th 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.
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.
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.
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.
Jason A. Harper, President
Southern California Mediation Association
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 3rd 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.