On Saturday, March 19, 2016, the Southern California Mediation Association held a Town Hall on two topics: mediator certification and mediation confidentiality. It is the latter that I wish to discuss.

The Supreme Court of California has repeatedly held that mediation confidentiality as set out in California Evidence Code Sections 1115-1128 is absolute. There are no exceptions unless the “result would violate due process, or lead to absurd results that clearly undermine the statutory purpose.” (Cassel v Superior Court (2011) 51 Cal. 4th 113,119.)  So, far, the Court has not been presented with such  a  case.

In response, in 2012 a bill was introduced into the California legislature to create an exception to mediation confidentiality for both civil and disciplinary actions against attorneys who breach their duties to their clients during a mediation. The bill created so much opposition that the Legislature gutted its contents and amended it to refer the matter to the California Law Revision Commission (CLRC) for study and review.

Recently, the CLRC voted to recommend that such an exception be created. This, too, created much opposition and discussion within the mediation community. Likewise, it created much discussion during the SCMA’s Town Hall.

One suggestion made to the CLRC but so far not adopted is the notion of “informed consent”; that litigants be told prior to mediation that mediation confidentiality will preclude any action (civil or disciplinary) by them against their attorney if they do settle and later have “buyer’s remorse.” In 2007, the appellate court in Wimsatt v. Superior Court (2007) 61 Cal. Rptr. 3d 200, 220 suggested as much:

In light of the harsh and inequitable results of the mediation confidentiality statutes (Evid. Code §1115 et seq.) such as those set out above, the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, they should “make

[it] clear at the outset that something other than a mediation is intended.” (Citation omitted.)  

California Business and Professions Code Section 6068(m) as well as Rule 3-500 of the California Rules of Professional Conduct require that an attorney should keep the client reasonably informed of significant developments in the case as well as  respond to inquiries from the client.

Further, California Rule of Professional Conduct Rule 3-110 requires that an attorney not act intentionally, recklessly or repeatedly fail to perform legal services. That is, an attorney must act “competently” which means having the diligence, learning and skill and mental, emotional and physical ability reasonably necessary to perform legal services to the client, and if the attorney does not have these, to either associate an attorney who does or acquire such skills before rendering legal services.

These rules taken together make a strong argument that an attorney should be “competent” on the subject of mediation confidentiality, especially its rules of inadmissibility and should inform and advise the client about them prior to attending a mediation. Yet, most attorneys do not.

Should such information be included as a paragraph  in an attorney-client fee agreement? Should the attorney discuss it with the client in the days or weeks prior to the mediation? Should the mediator discuss it at the mediation?

If a case settles, should the mediator conduct the equivalent of a voir dire of the client before she signs the agreement by asking such questions as:

  • Have you read the proposed settlement agreement?
  • Do you fully and completely understand the terms of the proposed settlement agreement?
  • Has your attorney explained the terms of the proposed settlement agreement to you and/or answered to your satisfaction any questions you may have about the proposed settlement agreement?
  • Did anyone force, threaten or pressure you into agreeing to this proposed settlement? That is, are you entering it voluntarily and of your own free will?
  • Has anyone promised you anything OTHER than what is set forth in the proposed settlement agreement? That is, are there any additional oral or written side agreements or representations?
  • Do you understand that you have the right NOT to sign this proposed settlement agreement and instead proceed to trial?
  • Do you understand that once you sign this proposed settlement agreement it is binding, admissible and enforceable and you can NOT change your mind?
  • Do you understand that because this settlement is occurring in the mediation, nothing said, or written will be admissible in court?
  • Are you satisfied with the representation given to you by your attorney here today? Do you understand that because this settlement has occurred as part of a mediation, you are giving up the right to later complain about this representation either to the State Bar of California or by filing a complaint in court?
  • Are you under any physical, emotional or mental disability that is preventing you from thinking clearly or impairing your ability to understand the terms of the proposed settlement agreement and the questions I have just asked?
  • Have you taken any medication or under the influence of any substance (alcohol or drugs) that is preventing you from thinking clearly or impairing your ability to understand the terms of the proposed settlement agreement and the questions I have just asked?
  • Are there any questions you wish to ask of me or anyone else?

(See: Rubin, John H., Stipulations of Settlement Put on the Record, http://www.johnrubinlaw.com/stipulations_article.html;and Guilty/Alford/Nolo Contendere Plea Questions to be asked Defendant by Court,http://www.vbgov.com/government/departments/courts/circuit-court-judges/Documents/Guilty%20Plea%20Questionnaire.pdf )

Many attorneys and mediators believe that creating an exception to mediation confidentiality as the CLRC proposes to do is opening up Pandora’s Box or as one mediator at SCMA’s Town Hall put it, “allowing the camel to stick its nose inside the tent.”

Perhaps “informed consent” is the way to go. Mediation is supposed to be voluntary and non-coercive. If a party does not want to agree to mediation confidentiality and its consequences, she can always attend a settlement conference instead.

… Just something to think about!

 

 

 

 

 

 

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