While everyone agrees that it is always best to have the actual parties and counsel physically present at a mediation, this is not always possible. Often, the plaintiff may appear by telephone and at times, I may not even be able to speak to the plaintiff but only to her counsel sitting in my conference room who then speaks to plaintiff by telephone when I leave.
A recent mediation has left me unsettled….and now wondering whether it is not such a bad thing that the California Law Revision Commission (CLRC) is about to recommend that an exception to mediation confidentiality be created for claims of alleged malpractice, professional negligence, breach of fiduciary duty etc. arising during a mediation.
Let me set the scene: I conducted a mediation in which both a representative of the defendant and defense counsel were physically present. Plaintiff’s counsel was present; plaintiff was available by telephone. I never spoke directly to plaintiff but was assured she was on telephone stand-by.
