The CLRC’s Comprehensive Background Materials On Mediation Confidentiality
The history of the Evidence Code provisions protecting mediation communications are comprehensively chronicled in memoranda prepared by the California Law Revision Commission (“CLRC”) Staff.
- California Evidence Code Sections 1115-1128 (Mediation Confidentiality) and Comments
- California Evidence Code Section 703.5
- Uniform Mediation Act and Comments
- CLRC Memorandum 2013-39 recounts the background to the currents statutes and presents a summary of the key cases interpreting those statutes.
- CLRC Memorandum 2014-6 discusses policy considerations that favor and are inconsistent with rules protecting mediation confidentiality.
- CLRC Memorandum 2014-4, Memorandum 2014-4 (Supplement 1), and Memorandum 2014-24 explore the law and rules in jurisdictions other than California, including the Uniform Mediation Act (adopted, in whole or part, by 11 states and the District of Columbia.
- CLRC Memorandum 2015-55 presents background and proposals related to requiring court to conduct closed and confidential (“in camera“) proceedings before allowing mediation communications to be revealed in lawsuits or administrative proceedings in which lawyer misconduct is in issue.
- CLRC Memorandum 2016-18 explores options for in camera and other procedures to protect confidential mediation communications from public disclosure if new exceptions to mediation confidentiality are proposed by the Law Revision Commission (with substantial focus on constitutional requirements for public access to judicial proceedings).
- Complete access to all of the Law Revision Commission’s study materials is available here.
Selected Materials Supporting The Creation Of New Exceptions To Mediation Confidentiality
The strongest voice underlying the impetus to consider amendments to the California Evidence Code sections protecting mediation communications from disclosure in litigation was that of California Supreme Court Associate Justice Ming Chin. Writing a separate, but concurring opinion, in Cassel v. Superior Court, 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437 (2011), Justice Chin agreed, reluctantly, with the rules barring the use of mediation communications to support a claim of legal malpractice. But he warned that the the decision would:
effectively shield an attorney’s actions during mediation, including advising the client, from a malpractice action even if those actions are incompetent or even deceptive. Attorneys participating in mediation will not be held accountable for any incompetent or fraudulent actions during that mediation unless the actions are so extreme as to engender a criminal prosecution against the attorney. This is a high price to pay to preserve total confidentiality in the mediation process.
Support for the initiative to create an exception to mediation confidentiality for communications relevant to lawyer malpractice claims came from the Beverly Hills Bar Association and the Conference of California Bar Associations (“CCBA”) (a group described as attorneys from local, specialty, and minority bar associations across the state). That group submitted comments to the Legislature stating that the decision in Cassel:
would seriously impair and undermine not only the attorney-client relationship but would likewise create a chilling effect on the use of mediations. In fact, clients would be precluded from pursuing any remedy against their own counsel for professional deficiencies occurring during the mediation process as well as representations made to the client to induce settlement.
Law Journal articles and individual and organizational writing in support and in opposition to proposals to create new exceptions to mediation confidentiality abound. Notable writings and submissions to the Law Revision Commission supporting new exceptions to mediation confidentiality include:
Materials Supporting Preservation Of The Current Rules Protecting Mediation Confidentiality
The Staff of the Law Revision Commission has summarized the essential bases for preserving the existing protections for mediation communications in Memorandum 2015-13. Invoking a 1986 article in the Journal on Dispute Resolution — Freedman and Prigoff, Confidentiality in Mediation: The need for Protection, J. Disp. Resol. 37, 38 (1986) — the staff notes the following reasons for protecting mediation confidentiality:
Effective mediation requires candor…. Mediators must be able to draw out baseline positions and interests which would be impossible if the parties were constantly looking over their shoulders….
Fairness to the disputants requires confidentiality…. Mediation … could be used as a discovery device against legally naive persons if the mediation communications were not inadmissible in subsequent judicial actions….
The mediator must remain neutral in fact and in perception…. Court testimony by a mediator, no matter how carefully presented, will inevitably be characterized so as to favor one side or the other. This would destroy a mediator’s efficacy as an impartial broker.
Privacy is an incentive for many to choose mediation. Whether it be protection of trade secrets or simply a disinclination to “air one’s dirty laundry” in the neighborhood, the option presented by the mediator to settle disputes quietly and informally is often a primary motivator for parties choosing this process.
Mediators, and mediation programs, need protection against distraction and harassment. Fledging community programs need all of their limited resources for the “business at hand.” Frequent subpoenas can encumber staff time, and dissuade volunteers from participating as mediators. . . . [Footnote omitted]
A more detailed excerpt of the staff memorandum is available here: CLRC Memo 2015-23: Excerpt on Need to Protect Mediation Confidentiality.
There is an abundance of additional material supporting mediation confidentiality in the public submissions to the CLRC. A short collection of materials worth review includes:
- SCMA’s May 3, 2012 Letter to State Assembly Members
- SCMA’s December 7, 2015 Letter to the CLRC
- Susan P. Finlay Comments to CLRC
- Public Employment Relations Board Letter to CLRC
- Bruce A. Edwards Comments to CLRC
- Martin Quinn Comments to the CLRC
- Harris Weinberg Comments to CLRC
- Comments of Lee Blackman to the CLRC Regarding In Camera Screening
- Comments of California Judges Association to the CLRC
Scholarly Materials and Decisions
- CLRC Memorandum 2015-23 — Scholarly Literature on Whether Mediation Communications Warrant Special Protection
- CLRC Review of Empirical Evidence Relating to Mediation Misconduct (Excerpt from Memorandum 2015-5)
- Rinaker v. Superior Court (1998)
- Olam v. Congress Mortgagae Co. (1999)
- Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001)
- Rojas v. Superior Court (Coffin) (2004)
- Simmons v. Ghaderi (2008)
- Cassel v. Super. Ct. (2011)
- SCMA’s Mediation Confidentiality Town Hall PowerPoint Presentation — March 19, 2016