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.