The Latest on Mediation Confidentiality in California
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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: 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.
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