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 firstname.lastname@example.org.
Lee L. Blackman
Blackman ADR Services
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