On December 10, 2015, the California Law Revision Commission (CLRC) met in Los Angeles, Ca to discuss the concept of in camera review as part of its tentative recommendation to create an exception to mediation confidentiality for attorney malpractice and other misconduct. (Since 2012-2013, the CLRC has been extensively studying the Relationship between Mediation Confidentiality and Attorney Malpractice and Other Misconduct entitled Study K-402 which may be found at: http://www.clrc.ca.gov/K402.html
Instead, what the Commissioners met were 35-40 mediators who came to speak at the meeting. Most of them were family law practitioners and/or mediators who spoke quite strongly against creating any exception to mediation confidentiality at all in the family law context. ( There were a few speakers who did favor creating the exception!) Among other things, these speakers pointed out that family law mediations are unique; they involve a long term relationship between the spouses in which children are involved. In most instances, at the conclusion of a mediated settlement agreement, neither spouse is happy with the outcome and may be looking for “payback”. Given the long term nature of the relationship, such “payback “is quite possible. Also, the spouse may well feel victimized and/or be looking for someone to blame. If an exception to mediation confidentiality is created, the unhappy (or victimized) spouse may well sue his/her attorney alleging malpractice.
The speakers also pointed out quite vividly, the harm that may be done to the children and/or third parties if this confidentiality veil is lifted. During a family law mediation, a lot of intimate, and thus potentially harmful information is revealed because the spouses trust the cloak of confidentiality. They will tell the mediator things that they would never reveal in court. They will be a lot more transparent in a mediation than they would ever be with a court. The disclosure of such information could have dire effects on the children and/or third parties if required as part of an alleged malpractice suit.
Also, proposals can be made within the confines of the mediation that would also never see the light of a courtroom. Confidentiality allows for the free flow of brainstorming – no matter how good or bad the ideas might be once analyzed. If an exception is allowed, such brainstorming may never occur as the spouses know their “crazy” ideas may come back to haunt them.
My summary does not do the speakers justice as they took close to two hours to express their vehement opposition to any sort of exception to mediation confidentiality, raising many cogent points.
The Commissioners broke for lunch.
After lunch, Ms. Gaal, the Chief Deputy Counsel for the Commission discussed her latest memorandum on in camera review noting that one large issue (requiring further research) is “public rights of access to judicial records and proceedings. “ (Memorandum 2015-55 at page 41.) (http://www.clrc.ca.gov/pub/2015/MM15-55.pdf) Ms. Gaal is very concerned that using an in camera approach denies access to the public to judicial review and proceedings.
At the conclusion of her presentation, the Commissioners took more comments specifically directed to in camera review. Again, the speakers voiced opposition to the point that one could see the Commissioners becoming frustrated, and exasperated if not a little hostile. At one point, one of the Commissioners noted that there would be no vote that day to undo its earlier recommendation to create some sort of exception to mediation confidentiality.
At approximately, 2:00 p.m., the Commissioners abruptly ended discussion on this topic and moved to the next item on the agenda. There was no discussion among them. They simply listened to all of the comments, listened to Ms. Gaal and moved to the next agenda item.
The next meeting of the Commission is February 4, 2016 at Davis, California.
Stay tuned….! There is still a long way to go as Ms. Gaal noted; once the CLRC makes it tentative recommendations, along with its tentative comments to its proposed recommendations and tentative narrative or explanation, these documents are then issued or posted for public comment for about 90 days. Once the comment period is over, the CLRC reviews the comments and makes any changes as it believes are needed. Only then, does it send its recommendations to the Legislature where that process then begins.
… Just something to think about!
I want to wish everyone a very happy holiday and a wonderful new year. I am going to take some time off from my blogging to enjoy the holidays with family and friends. I will be back in January 2016. Happy Holidays!!!!
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