Several weeks ago, I posted a blog about the proposals voted on by the California Law Revision Commission to make certain changes to mediation confidentiality in California. At its August 8, 2015 meeting, the Commission proposed creating several exceptions to mediation confidentiality that would allow; (1) Both lawyers representing clients and attorney mediators to be sued for malpractice and/or misconduct; (2) Both lawyers representing clients and attorney mediators to be subject to discipline by the State Bar for misconduct; (3) The use of an in camera screening process; (4) All relevant evidence to be admitted both to prove and disprove a claim; (5) Misconduct both within and outside of mediation to be at issue; and (6) Conduct in a professional capacity only to be at issue.

 

Needless to say, many, many , many comments were submitted to the Commission in the weeks following its vote. Most of them opposed creating any exception to mediation confidentiality. Others objected to the disparate treatment of mediators who happen to be attorneys and mediators who are not attorneys. While the former could be subject to discipline and civil litigation, the latter were entirely omitted from any exceptions and thus, still, completely under the umbrella of the mediation confidentiality statutes. Still others raised other very thoughtful and insightful points.

As a result of this barrage of comments, the Commission back tracked at its October 8, 2015 meeting. It decided to exclude attorney mediators from its recommendations such that any exception to mediation confidentiality will apply to attorneys representing clients only and not to attorneys who are the mediators. The Commission recognized mediators have long had quasi-judicial immunity and further that under Evidence Code Section 703.5 mediators are incompetent to testify. Rather than undertake a mammoth revision of these long standing propositions, the Commission agreed to leave them in place.

The Commission also voted that any exception to mediation confidentiality shall not apply to any proceeding to enforce the settlement agreement. Thus, a litigant who attempts to argue that she was coerced into settling, was under duress et cetera will not be able to raise this argument in response to a motion to enforce the settlement agreement.

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