We all agree on mediation confidentially

As a matter of California public policy, mediation confidentiality is protected as an evidentiary exclusion. See Evidence Code Section 1119. Along with the attorney-client privilege and the attorney work product immunity, mediation confidentiality encourages freedom of expression between the parties to the settlement process, their attorneys, the mediator and with each other. Protection extends to all discussions conducted in preparation for a mediation as well as all related communications that take place during the process itself -- which may stretch beyond the physical proximity of the mediation, so long as settlement discussions continue. And it includes what transpires between the parties when the mediator makes a confidential settlement proposal at their request.

Mediation confidentiality allows for settlement proposals to be exchanged without fear that what transpires during the process may be used later to benefit one of the parties to the dispute. These discussions are protected from disclosure even if they do not occur in the presence of the mediator or other disputants. See Cassel v. Superior Court, 51 Cal. 4th 113 (2011) (holding the terms of Section 1119 "must govern, even though they may compromise petitioner's ability to prove his claim of legal malpractice.").

Public policy favoring mediation confidentiality in California began in 1985. So why now such a fervent campaign to eliminate this protection? A small contingent of the profession first attempted to curtail mediation confidentiality with Assembly Bill 2025 in 2012. Because of extensive public opposition, that effort was contained. The present effort proposed by the California Law Revision Commission is to enact Evidence Code Section 1120.5, creating an exception to mediation confidentiality when communications are relevant in a lawsuit or fee dispute to prove an allegation of legal malpractice.

In addition to a relevant committee of the California Judicial Council opposing the effort, the Consumer Attorneys of California and California Defense Counsel submitted a joint letter of opposition. This is rare: Both the organized plaintiffs' bar and the organized defense bar believe our current right to choose confidential mediation best serves their clients. Apparently, there is general satisfaction with what most mediators are doing -- even-handedly serving groups that almost always see their interests as conflicting.

Also in opposition is the statewide Consortium for Children, the National Academy of Professional Family Mediators, the Family Law Section of the Los Angeles County Bar Association, the Los Angeles County Department of Consumer and Business Affairs, and the Los Angeles Center for Conflict Resolution. These groups describe the potential damage the proposed legislation would do to children, families and the communities of limited means served by local mediation programs. And the California Dispute Resolution Council wrote in opposition on behalf of all providers of mediation services statewide

The Conference of California Bar Associations is the only organization currently listed in support of the proposed legislation. Their lobbyist has been clear that his job is to continue to support this or similar legislation until and unless the conference changes course.

On Dec. 1, the California Law Revision Commission will once again inexplicably delve into the mediation confidentiality debate, continuing to agonize over the relationship between mediation confidentiality, attorney malpractice and other misconduct. But why has the commission continued along the path leading to major alteration of mediation confidentiality? Why not leave it as is? What is the real motive of those pushing to curtail mediation confidentiality?

Currently, the focus is on lawyer malpractice. However, the way the commission is steering the discussion, any dispute over attorney fees would seem to permit ignoring confidentiality. Apparently, the Conference of California Bar Associations has been pushing this because of the perception that, "you should always be able to sue your lawyer." This raises several questions that highlight the fallacy of this effort.

Why is it necessary to have a public waiver by statute when a private relinquishment would suffice in any given case? The mandate of the commission is to propose legislation that serves the public interest. How does this effort accomplish that? There has been no real indication of a need to make changes in the rules of confidentiality. Where is the evidence of necessity other than a gut reaction to the Cassel case? Why not at least limit the rule to State Bar disciplinary proceedings utilizing its Restitution Fund to compensate damaged clients?

There is the difficult balance in enacting any exclusionary evidentiary rule. Millions of people have benefited by mediation confidentiality. Weigh that against a dubious benefit for a few being better able to sue their attorneys. This requires properly balancing the public benefit versus selected individual cases of malpractice that could be handled through State Bar Disciplinary procedures, and use of the bar's client restitution fund where justified.

We must inform our state legislators how strongly mediators and the public feel about preserving our current right to choose confidential mediation. Legislation removing confidentiality can be slipped into a "must-pass" bill at the last moment before the public becomes aware or has time to organize opposition. All concerned members of the public who want to keep confidentiality in mediation inviolate should contact their state assembly persons and senators to oppose this and be alert to any "tack-on" attempts.

From personal experience, it is difficult to convince the parties to a mediation to be completely forthcoming even with assurances the process is confidential. So why would we want to abandon what is at least the opportunity to pierce the veil of secrecy possibly standing in the way of settlement?