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 by virtue 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.
See Tentative Recommendation at pages 133-141.
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 email@example.com.
… Just something to think about.