In a hearing on December 1, 2017 lasting one hour beyond the scheduled end time, the California Law Revision Commission (“CLRC”) gave its final approval to the Tentative Recommendation issued in June 2017 to create certain exceptions to mediation confidentiality. Its final approval is subject to the chair and /or vice chair approving further language revisions to proposed Evidence Code Section 1120.5 that were discussed and approved during this four-hour meeting.
At the meeting, the Commissioners took up all of the suggestions and comments set out in Memorandum 2017-61. Initially, it agreed to a minor word change of “professional requirement” to “professional obligation” in proposed Evidence Code section 1120.5(a)(1) to be consistent with other statutes. It then launched into a major discussion lasting approximate ninety minutes whether the exception should apply ONLY to state bar disciplinary proceeding as was suggested at its last meeting. Ultimately, the Commissioners voted NOT to limit the exception to state bar disciplinary proceedings but rather to stay with its original inclination that the exception should apply to (1) a legal malpractice civil action; (2) a fee dispute brought under the Mandatory Fee Arbitration statue; and (3) a state bar disciplinary proceeding. Towards the end of the hearing, the Commissioners voted to include into the exception, a legal malpractice action that is arbitrated rather than filed in court.
One suggestion was to include “fraud” and “breach of fiduciary duty” into the exceptions but the Commissioners declined deciding that the language already in the statute was broad enough to cover these precise claims.
The Commissioners further declined to place into the statute itself language explaining about mediated settlement agreements now found in the Comment section as well as declined any further action to address the possible inconsistent evidentiary issue raised in an action involving both a complaint and cross-complaint. While the exception would apply to the complaint, it would not apply to the cross-complaint. The CLRC voted to leave this issue to the courts to adjudicate.
The CLRC also declined to address the issue of what, if any, impact, a successful malpractice action would have on a prior settlement agreement. Would it unravel the settlement? Again, under the belief that collateral estoppel would not apply, the Commissioners viewed it as a non-issue.
The Commissioners did agree to add language within the statute (Section 1120.5(a)(3)) reciting the same exceptions that now appear in Evidence Code 703.5: that while a mediator is generally incompetent to provide oral and written testimony, this incompetency is removed in matters giving rise to civil and criminal contempt, constitutes a crime, be the subject of investigation by the State Bar or Commission on Judicial Performance; and give rise to disqualification under certain provisions of CCP 170.1. But, the Commissioners declined to add a cross reference to the definition of “writing” as contained in Evidence Code 250 on the basis that such is not usually done.
Perhaps one of the most important issues taken up by the Commissioners was “notice”. When and to whom and how much notice should be given to the other parties to the mediation that one of the exceptions to mediation confidentiality given has been invoked? After much discussion lasting close to an hour, the Commissioners decided that not only would the notice requirement apply to all three categories of exceptions (The draft statute as presently worded requires notice ONLY when a civil action for legal malpractice is filed and NOT to state bar disciplinary actions or mandatory fee arbitration disputes.) but the party instituting one of these three proceedings must provide notice that (1) there is a dispute under the relevant subsection of proposed Evidence Code 1120.5, (2) mediation confidentiality is at issue in that confidential information may be disclosed, and (3) the notice includes a copy of the complaint. Reasonable notice is to be given prior to the invocation of the exception to mediation confidentiality.
Once again, the issue of awarding attorney fees to a mediation participant who is a non-party to the legal malpractice action, mandatory fee arbitration dispute or state bar disciplinary action who moves to protect his/her confidential information was discussed. As before, the Commissioners declined to include any cost shifting provisions, believing that existing statutes can resolve this issue.
The next to the last issue considered had been raised several times but never decided by the CLRC: contractual waivers. While the original legislative mandate in AB 2025 included the consideration of contractual waivers, the CLRC had up to now put aside addressing it. At this hearing, it definitively agreed to prohibit such waivers. The proposed statute will now include a subpart (h): “Any agreement purporting to override this section is null and void.”
Finally, the Commissioners again took up the issue of the possible obligation of either the attorneys or mediators to inform mediation participants about the exception. As on previous occasions, they demurred, declining to make any recommendations on this “informed consent” issue believing that if counsel is involved in a mediation, they have a duty of full disclosure under the California Rules of Professional Responsibility and if the participant is self-representing- the issue does not arise.
So- at a few minutes past 6:00 p.m., the Commissioners voted to approve the Tentative Recommendation subject to the revisions to be made in the proposed statute as just noted and approved by the Chair and/or Vice Chair. By taking the vote at this meeting rather than putting it over to its meeting in February 2018, the Commissioners realized that their Tentative Recommendation would make it into the upcoming legislative session in which all legislative bills must be submitted prior to its next meeting. In short, there would have been a delay of a year in submitting this to the Legislature had they waited until February 2018 to finish up.
To those who are interested in this subject with views one way or the other, I urge you to contact your state legislator.
More than 400 Attendees, Presenters, Exhibitors and Sponsors made their way to sunny Downtown Los Angeles to attend the SCMA Annual Fall Conference on October 22-23, 2017 at the LA Hotel Downtown. The theme of the 2017 Conference was “Mediation in the Real World: New Thinking, New Practices.”
Our Friday Evening Reception Dinner kicked off with award presentations to Mary Culbert and Marco Turk. Which led us into a full day Saturday starting off with Keynote Speaker and 2017 Cloke-Millen Peacemaker of the Year Award Recipient, William Ury, cofounder of Harvard’s Program on Negotiation. Mr. Ury’s Keynote Speech can be found here (link).
The 2017 Conference covered many topics, such as cultural intelligence, peace dialogue training, non-traditional mediation jobs, cognitive biases and more.
The SCMA would like to again extend many thanks to our sponsors and exhibitors for aiding in the success of this year’s conference.
We hope to see you again in 2018 to be held on November 2-3, 2018 in Los Angeles
Sample Pictures from the Friday Night Welcome Dinner & Awards
Mediation is a powerful process but is still largely society’s best kept secret outside of the litigated case arena. Further professionalizing mediation promises to create public awareness and increase utilization. This program examines the impact of taking the next steps for mediators and disputants alike.
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.
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:
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.
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!
Westside Extension Center – West Los Angeles Community College: 9000 Overland Ave, Culver City, CA 90230
Phone: (310) 287-4200
Become a stronger mediator through lecture, role plays, and individualized coaching.
Expand your abilities and practice areas by learning how to handle more complex multiple-issue and multiple-party conflicts and intensely emotional situations.
Discuss how to deal with representatives like attorneys, union officials, and managers; find out about the dynamics of power plus techniques for managing them.
Complete the Conflict Dynamics Profile assessment so you are aware of your strengths and weaknesses and can create an action plan to become an even more effective mediator and learn from each mediation session.
You’ll also cover drafting settlements agreements, EEO and how to maintain an effortless flow throughout the mediation session.
Pre-requisite: a 24-hour course in basic mediation. *$30 material fee, due at registration, for Conflict Dynamics Profile assessment.