The Best Laid Plans of Legislators and Mediators: The Case for Broadening the Scope of Mediation Confidentiality

I. Introduction

The past three decades have seen the explosive growth of mediation. In California alone, hundreds of thousands of cases that otherwise would have clogged its Courts have resolved through mediation1. Confidentiality is a central pillar of the mediation process. California currently pro­vides one of the most ironclad mediation confidential­ity protections (“Protections”) in the country. It renders mediation communications inadmissible in any civil legal proceeding. Unfortunately, the California Law Revision Commission (“CLRC”) is considering exceptions which, If passed, would be, in certain important respects, nearly as porous as those codified in the Uniform Mediation Act (“UMA”).2

The prospects of (1) weakening California’s mediation confidentiality, and (2) maintaining the overbreadth of the UMA’s confidentiality exceptions, threaten the viability of mediation as an alternative to litigation. The author sub­mits that the objections of highly experienced California mediators3, judges and lawyers to the proposed California confidentiality exceptions are well-placed, and should also inspire an overhaul of certain of the UMA’s confidentiality exceptions.

 II. California’s Current Confidentiality Protection

California’s narrow confidentiality exceptions are codi­fied in California Evidence Code sections 703.5 and 1115- 1128. Subparts (a) & (b) of section 1119 provide that, “No evidence of anything said, or any admission made [or writing prepared] for the purpose of, in the course of, or pursuant to, a mediation [collectively, “Mediation Communications”] is admissible or subject to discovery” in any non-criminal proceeding.

With several narrow exceptions not pertinent here, sec­tion 703.5 renders mediators incompetent to testify in any civil proceeding about any Mediation Communication.

The California Supreme Court has characterized the Protection as “clear and absolute,” and affirmed that it “broadly provid[es] for the confidentiality of things spo­ken or written in connection with a mediation proceed­ing.” See, Cassel v. Superior Court, 51 Cal. 4th 113, 117-118 (2011). Nothing could be more definitive, and yet….

 III. The State of Play in California

In early 2012, a threat to the Protection’s “clear and absolute” nature materialized when California Assembly Bill 2025 was proposed to create a new mediation excep­tion: Mediation Communications between a party and his or her attorney would be admissible in a legal malpractice, breach of fiduciary duty or State Bar disciplinary action in which the client’s claims against the lawyer arise out of professional negligence or misconduct. (The “Attorney Misconduct Exception.”)

In the face of vehement objections, studies such as the CLRC’s “Study K-402” were undertaken. Yet, on August 7, 2015 the CLRC voted to draft legislation that would allow admission of Mediation Communications relevant to a party’s allegation of his or her lawyer’s misconduct at mediation. Objections to the CLRC’s decision reached a crescendo.

In response, the CLRC, to its credit, voted on October 8 to narrow its proposed Attorney Misconduct Exception in several ways:

  • Keep Code section 730.5 intact. Mediators would remain incompetent to testify in Attorney Misconduct cases (other than in State Bar disciplinary proceedings).
  • Maintain the Protection in any mediator misconduct case.
  • Retain the finality of mediation settlements.
  • Only allow the admission of Mediation Communications in Attorney Misconduct Actions but not in other related matters.
  • Provide for an in camera review before subpoenas may issue.

Despite these restrictions, however, a real possibility still exists that the Attorney Misconduct Exception will become law in California. If this happens, mediation confidentiality will be compromised, and the viability of the process could be significantly thwarted. For the same reasons, serious thought should be given to narrowing the UMA’s similar confidentiality exceptions, as explained in the next section.

IV. The UMA’s Broad Exceptions to Confidentiality

As the situation in California sorts itself out, it is also important to analyze the UMA’s exceptions to the Protection through the California lens. UMA section 4 does provide that, absent waiver or an applicable exception (enumerated in Section 6), Mediation Communications are generally inadmissible. Parties, the mediator and non-party participants also may refuse to disclose them. It is in the details of confidentiality exceptions 5 and 6, however, that we encounter the legislative Devil4. Those sections may be summarized as follows:

  • A Mediation Communication is not protected if it is introduced in a subsequent proceeding against the mediator involving his or her alleged professional mis­conduct or malpractice.
  • None of the people listed in exception 6 can invoke the Protection if a Mediation Communication is used in a later claim of professional misconduct/malpractice dur­ing the mediation against a party to it, her representa­tive, or a non-party participant.5
  • As set forth in Section IV infra, the UMA’s overbroad exceptions, particularly those requiring the mediator’s later testimony (California does not have such an excep­tion) erode mediation confidentiality, and the effective­ness of the process itself.

V. Why an Attorney Misconduct Exception is Counter-productive

For a mediation to be effective, all participants must be free to discuss the case’s strengths and weaknesses with unvarnished candor, confident that “what is communi­cated in mediation stays in mediation.” If this protective shield is compromised, however, the parties and their counsel will continually be looking over their metaphorical shoulders, focused more on how the admission of evidence of their frank comments could affect them later, and less on working to resolve the case.

California’s proposed exception (and the UMA) also hobble the mediator’s effectiveness. For example, if this exception becomes law in California, could a media­tor truthfully tell the participants that all Mediation Communications are confidential, and inadmissible in another civil legal matter? Must a mediator proactively advise that confidentiality has important exceptions? How do mediators in states that have adopted the UMA address these issues?

While the CLRC’s goal of protecting legal service con­sumers during mediations is well-intended, the author is not aware of any reliable evidence that a significant num­ber of clients have sued their attorneys based on mediation conduct. Concerns about this relatively insignificant issue pale in comparison to the deleterious effect that carving out this proposed exception to the Protection would have.

Mediation confidentiality does represent a policy choice. As here, evidence exclusion is often necessary. It allows participants in a mediation to determine the best available settlement, and, should they choose, to settle the dispute accordingly. If that Protection is abrogated, how­ever, and the client files a claim against his or her lawyer for tortious advice or other mediation misconduct (e.g., Cassel, supra), that lawyer will undoubtedly seek admis­sion of all relevant Mediation Communications to rebut the client’s claims. This would pose a grave threat to the crucially important benefit of predictable confidentiality concerning Mediation Communications.

VI. Conclusion

The CLRC should be persuaded to abandon the pro­posed Attorney Misconduct Exception to California’s Protection. Moreover, if the UMA’s exceptions are not tightened, other states considering the UMA should adopt it, if at all, without its broad exceptions. Mediation is by far the most effective way to manage the overwhelming volume of litigation in this country; it must be nurtured, not dismantled.

Cameron Stout is a nationally recognized securities attorney, an employment law­yer, and a mediator and arbitrator. As a principal of Wiand Guerra King’s ADR practice, he mediates securities, employ­ment, commercial and health insurance/ parity cases. Cameron graduated from Princeton University in 1980, and from the University of San Francisco School of Law in 1984 with honors. Cam lives and practices in Palo Alto, and is an avid cyclist and tennis player.

This article was originally published in The Resolver, the ADR newsletter of the Federal Bar Association.” 

Endnotes

1Even the Bible urges swift settlement: “Come to terms quickly with your accuser while you are going with him to court, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison.” Matthew, 5:25 (ESV).

2A number of states (excluding California) have either adopted the UMA or are considering it. Although beyond this article’s scope, the UMA’s broad confidentiality excep­tions may well have been a reason for California’s decision not to adopt the UMA.

3The author is indebted to Ron Kelly, a highly regarded California mediator and leading commentator on the broad changes that are under consideration to California’s confidentiality exceptions. Those with an interest may contact Mr. Kelly via his website, www.ronkelly.com, to be included on his mailing list for updates on this vital issue.

4While many family law experts undoubtedly object to the UMA’s seventh exception involving issues arising in the family law/child abuse context, this exception is also outside this article’s ambit.

5Thank goodness for small favors: mediators cannot be compelled to give testimony relating to such claims. (See, UMA section 6(c).)