Keep mediation fully confidential

As you know from recent coverage in the Daily Journal, the California Law Revision Commission has decided to draft legislation to provide an exception to mediation confidentiality in the event of a malpractice claim. Their decision is taking California law in a regrettable about-face of a policy that, in the words of mediation advocate Ron Kelly, "has served California, and its families in transition, very well for over thirty years." As noted by professor A. Marco Turk in the Daily Journal (Aug. 12), this came as a shock to many in the mediation community who only recently learned of the commission's study and public hearings on the topic.

Hundreds of mediators and attorneys who use mediation have written the commission describing their opposition to the direction it has chosen. However, attorneys Elizabeth Moreno and Larry Doyle assert that the concerns of opponents are "baseless." ("New CLRC rules unfairly criticized," Sept. 22). The article accuses the opponents of engaging in "a misleading campaign" that seeks to "mischaracterize the CLRCs decision." This accusation is itself misleading, ad hominem and unfortunate.

Mediation confidentiality serves both the parties to mediation and the mediators themselves. This is why the case law and statutes, which the CLRC would have us overturn, have strongly and consistently supported a firewall against any breach of confidentiality unless the evidence is sought in a criminal trial.

In Rojas v. Superior Court, 33 Cal. 4th 407 (2004), the state Supreme Court stressed the importance of confidentiality assurances to the parties involved in mediation, explaining as follows: "One of the fundamental ways the Legislature has sought to encourage mediation is by enacting several 'mediation confidentiality provisions.' As we have explained, 'confidentiality is essential to effective mediation' because it 'promote[s] "a candid and informal exchange regarding events in the past.... This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes."' 'To carry out the purpose of encouraging mediation by ensuring confidentiality, [our] statutory scheme ... unqualifiedly bars disclosure of' specified communications and writings associated with a mediation 'absent an express statutory exception.'" (Internal citations omitted).

Supporters of the draft legislation make light of the impact of weakening confidentiality. The article implies that it is ridiculous to think unhappy divorcing persons would make spurious malpractice claims just to open the door to depositions, subpoenas and testimony. Yet there are those who gladly would use the claim of attorney malpractice to get a second chance at continuing the battle or reaching a different settlement. This is a danger not only to the attorney but to the other party who had every right to expect that what went on in the proceeding would be confidential.

The article also refers to "alarming public comment from legal malpractice attorneys and consumers about false or misleading statements by their attorneys to induce them to settle." Many of us have been certified family law specialists and mediation providers for decades. Neither we nor the many esteemed retired family law judges and experienced family law attorneys we've spoken with have experienced a meaningful number of attorneys providing false or misleading statements to induce settlements. Mostly, in the opinion of retired commissioner Gretchen A. Taylor, the lack of perfect evidence and the uncertainty and financial and emotional cost of a litigated resolution leads to compromise, the benefit of which is highly personal. Those claiming they have been the victims of malpractice are more often attempting to offset fees, find a scapegoat for their personal disappointments, or reopen negotiations by doing an end-run around the confidentiality which has long been recognized as crucial to the open discussions necessary to reach agreement. This is particularly true in the highly personal family law arena, where the settlements may take into account not only legal rights but emotional, financial, moral or other personal needs.

It is also not unreasonable to conclude that if mediators were exposed to malpractice claims, they would be discouraged from the private practice of mediation and from staffing the growing and important mediation attorney volunteer-staffed programs which operate in our massively overburdened family law courts.

The public policy reasons for encouraging mediation have been stated clearly and consistently, again by our state high court in Rojas: "'[i]mplementing alternatives to judicial dispute resolution has been a strong legislative policy since at least 1986.' Mediation is one of the alternatives the Legislature has sought to implement. The Legislature has expressly declared: 'In appropriate cases, mediation provides parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes and a greater opportunity to participate directly in resolving these disputes. Mediation may also assist to reduce the backlog of cases burdening the judicial system. It is in the public interest for mediation to be encouraged and used where appropriate by the courts.'" (Internal citations omitted).

Mediation, and its assurance of predictable confidentiality, is a voluntary process which offers clients an opportunity to engage in a different system of resolution than the traditional adversarial model. If they do not want the benefit (or burden) of confidentiality, they can hire a neutral as a voluntary settlement conference officer and provide that the proceedings shall not be deemed a mediation. Principles of mediation confidentiality will not apply. A mediated settlement provides more finality and is more difficult to overturn. It's a cost worth bearing for the benefits of a confidential, private ordering process where disputants may elect to follow the law or to adjust their settlement to include important emotional, moral, business, or other personal considerations.

We urge the CLRC to open up the subject to further, civilized discourse. We ask proponents and opponents alike not to demonize or disparage those who disagree with them. We call on the CLRC to assess whether, in fact, there is evidence that the actual numbers and nature of those who may have been harmed in mediation is really significant. If so, we ask that the commission consider alternative, less draconian solutions, which do not expose the mediator to liability and the parties to an unwanted breach of their privacy. It is our hope that instead of the polarized campaign that has begun, we can return to a cooperative problem-solving effort to address and sustain the viability of confidential mediation in California.

If you have experience with mediation confidentiality and its effect, please share it with the CLRC, Barbara Sandra Gaal at bgaal@clrc.ca.gov. If you want to read more about the CLRC Study K-402, go to www.clrc.ca.gov/K402.html