The California Legislature continues to focus on the issue of Mediation Confidentiality. This post * Memorandum 2014-36, Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment” contains three public comments on the topic:
Doug deVries is “a full-time California mediator with Judicate West and a former plaintiff-side civil trial lawyer who served as President of the California Trial Lawyers Association in 1994 (currently known as the Consumer Attorneys of California).” He writes to provide his personal input (not on behalf of CAOC or any other organization) “cautioning against weakening mediation confidentiality as it is presently constituted.”
Jullie Doyle writes “to express concerns regarding California Evidence Code section 1119 as interpreted by the California Supreme Court in the case of Cassel v. Superior Court (2011) 51 Cal. 4th 113.”11 She does not provide any information about her background; we presume she is neither a lawyer nor a mediator. Ms. Doyle describes a mediation involving a friend of hers who had cancer. According to Ms. Doyle, her friend’s attorney lied to him, signed a comprehensive “mediator’s proposal” without informing him, threatened him, and engaged in other mediation-related misconduct.12 To protect privacy interests and safeguard against any claim of defamation, the staff has redacted the names of Ms. Doyle’s friend and his attorney. The rest of her description is reproduced verbatim. In light of that incident, Ms. Doyle says that [t]here is good cause for an amendment to the statute because of how it has been interpreted by the Supreme Court which effectively immunizes attorneys who are able to lie, cheat and steal from their clients and then hide behind the “mediation privilege” for protection. This amendment literally says that an attorney can commit a fraudulent act and it cannot be presented in court and he cannot be held accountable. My mouth literally drops open … at the absolute audacity! Come on fix it now, what in the world do you need? She urges the Commission to take action because “[c]ients need protection from errant lawyers.”
Karen Mak has an MBA from Kellogg Graduate School of Business and considerable experience as a real estate investor and strategy consultant.16 On a number of occasions, she chose to use mediation to settle a dispute in California. She “was pleased with the results” and considers herself “a reasonably sophisticated user of the mediation process.” Ms. Mak’s comments touch on a number of different points, one of which warrants immediate attention from the Commission. We describe her comments first, and then respond to the point of immediate concern. Ms. Mak’s Perspective on the Commission’s Study Ms. Mak “recently became aware of California’s strict mediation confidentiality statutes and of the work of this Commission while attending a seminar about mediation at a university in Australia.”18 She reports that at the seminar, California’s mediation confidentiality rules and cases “were brought to the attention of the audience, not as a model for how to promote the use of mediation, but as a joke.” More specifically, she says “[t]he statutes were mentioned as an example of what not to do, of what happens when legislators fail to consider the needs of the true ‘customer’ of the mediation process (the client with the dispute), and of what happens when the issue of confidentiality is wrongly believed to be the only important factor driving the decision to settle a dispute through mediation.
Victoria a mediator for the National Mediation Board facilitating resolution of airline and railroad industry labor agreements, is also a trainer, certified conflict coach, Communication Chair and Board member for SCMA and Board member for Mediators Beyond Borders.