I hope all is well. I am writing to update you on our Professional Development Groups (PDGs).
We would like to thank West Los Angeles PDG Leader, Stacey Lisk, for accepting the role of PDG Chairperson for all of our PDG’s. Stacey has picked up the mantle from Mark Lewis who provided great leadership in this role for the past couple of years. Along with our current PDG Group Leaders, Stacey will assist SCMA in thinking through the future growth and expansion of our PDG’s and ensuring that our PDG’s continue to be a value-added benefit of membership in SCMA.
If you are interested in attending a PDG, getting more involved with a PDG, and/or starting a PDG in your local area, please feel free to reach out to Stacey or me, or any of our PDG leaders below. Our current PDG groups and group leaders are as follows:
Pasadena – John Irwin, PDG Leader: email@example.com
San Fernando Valley – James (“Jim”) Cameron, PDG Leader: firstname.lastname@example.org
South Bay Los Angeles – Mark Sarni, Andy Shelby, and Marvin Whistler –
Co-PDG Leaders: email@example.com, firstname.lastname@example.org, email@example.com
West Los Angeles – Stacey Lisk, PDG Leader: firstname.lastname@example.org
We also are looking forward to re-igniting our Santa Barbara and San Diego PDG’s in addition to starting PDG’s in Orange County and the Inland Empire.
We look forward to seeing you at a future PDG meeting. Have a great evening and remainder of the week.
Angela J. Reddock-Wright, Esq.
We are delighted to tell you about our launch of new webinar series starting with two new webinars to assist you with building your mediation network and practice. Each webinar will be an hour-long interactive session hosted by an SCMA Special Guest Presenter.
Though all of our sessions will be available to watch on-demand, we hope you’ll join us live. If you do, you’ll have a chance to ask questions of the presenters.
Sign up using the links below. We look forward to talking to you! If you miss these webinars live, you can always watch them on-demand by clicking on the same links and registering.
Building your Skills and Mediation Practice with Nikki Tolt
On October 4, 2017, the Los Angeles County Superior Court (LASC) issued a request for proposals (RFP) for civil mediation services. The RFP offers mediation providers the opportunity to help settle LASC cases in an effort to address LASC’s growing calendar overload. However, the RFP controversially excludes non-attorney mediators and attorney mediators with less than ten years of California Bar membership. This effectively disqualifies a significant number of mediators, many of whom have been successfully settling LASC cases for years. More- over, these restrictions have no basis in research on mediation success, which shows little difference in settlement rates between attorney and non- attorney mediators.
LASC’s RFP is a wake-up call for the mediation community. The RFP is evidence that if we fail to establish our own mediator qualifications, oth- ers will do it for us. And too often, they will do it in a way that is incon- sistent with our shared values and the values of the mediation profession. The RFP confirms the fears that have long existed in mediation circles. For example, in 2006 the San Diego-based National Conflict Resolution Center (NCRC) wrote:
The critical need for [a discussion on mediator qualifications] among those who practice is accentuated by the legitimate fear that if we don’t decide these things for our- selves (in the spirit of mediation, the empowering process that requires accountability and responsibility on the part of our clients), someone else will. We cannot afford an- other ‘surrogate’ profession to set the standards and in- form the consumers. … We believe that mediators should be the ones to establish mediator standards and enforce the guidelines that are essential to practice.
Fortunately, SCMA has not been idle. For several years, SCMA has investigated mediator credentialing through an ad hoc committee. The committee spent over five years listening to the community, evaluating research on the issue, and debating options. In its final report in 2013, the commit- tee wrote:
Whether the practice of mediation should be regulated or credentialed in any way has long been a contentious topic within the ADR community, which has yet to reach consensus on the issue. On the one hand, many practitioners see no compelling need for regulation or certification, as there has been no public outcry for it. … On the other hand, many mediators desire a credential that would be of benefit to themselves and the public. … These mediators favor some sort of credentialing out of interest in promoting and supporting the highest standards for our field and, for some, out of fear that unless we mediators regulate or certify ourselves, someone else will do it for us.
The committee concluded that a system of voluntary mediator certification would benefit both the public and the profession.
The committee’s efforts have led to the formation of a sister organization—the Mediator Certification Consortium of California (MC3)—that is creating a voluntary mediator certification that we hope will become the gold standard for the mediation profession. MC3 certification qualifies mediators based upon their mediation background, relevant education, and demonstrated skills. It requires:
80 hours of mediator education and training;
Performance criteria that includes prior mediation experience;
Live scan (fingerprinting) to ensure that inappropriate persons are not credentialed;
Criteria that require certified mediators to complete continuing education;
Commitment by mediators to both the ABA/AAA/ACR Model Standards of Conduct for Mediators and the California Rules of Court; and
A quality assurance process that will track complaints and, when necessary, discipline certified mediators.
MC3 certification will require that non-attorney mediators take a nuts-and-bolts course on litigation terminology, processes, rules, and procedures, similar to the prior requirement of LASC’s ADR panel. It will also require participating mediators to take the course on mediation ethics contained in the California Rules of Court as it is currently administered by the Administrative Office of the Courts.
LASC’s RFP is a missed opportunity. But it is also a chance for us to come together as mediators and create something better for our courts and our communities, and ultimately, for our profession. And that is an opportunity that we don’t want to miss.
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.