1 00:00:00,000 --> 00:00:05,040 Support for this episode comes from Lawyers Mutual Insurance Company, who have proudly 2 00:00:05,040 --> 00:00:11,240 provided California attorneys with specialized professional liability coverage for over 45 3 00:00:11,240 --> 00:00:12,480 years. 4 00:00:12,480 --> 00:00:18,280 And did you know? Lawyers Mutual offers competitive specialty rates for their members who act 5 00:00:18,280 --> 00:00:22,880 as a neutral, either on a full-time or part-time basis. 6 00:00:22,880 --> 00:00:28,640 So, as part of their arbitration mediation specialty program, all members receive an 7 00:00:28,640 --> 00:00:33,560 individualized premium based on the areas of practice their firm handles. 8 00:00:33,560 --> 00:00:37,800 This allows Lawyers Mutual to adjust rates annually, and as you build your mediation 9 00:00:37,800 --> 00:00:43,400 practice, your premium will reflect the portion of your time spent working as a neutral. 10 00:00:43,400 --> 00:00:49,040 To learn more about how this great program can benefit your firm, visit LawyersMutual.com 11 00:00:49,040 --> 00:00:50,040 today. 12 00:00:50,040 --> 00:01:02,160 Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Phyllis 13 00:01:02,160 --> 00:01:07,600 Pollack of PGP Mediation, will guide you through essential ethics of mediation. Let's dive 14 00:01:07,600 --> 00:01:08,600 in. 15 00:01:08,600 --> 00:01:14,560 My name is Phyllis Pollack, and as part of the Beverly Hills training, our training program, 16 00:01:14,560 --> 00:01:21,440 I'd like to just spend about the next 60 minutes talking about the essential ethics of mediation. 17 00:01:21,440 --> 00:01:29,320 So to begin, let's first look at an outline, and what we will discuss this morning or today 18 00:01:29,320 --> 00:01:35,160 will be first, I will go over a definition of ethics. I will then discuss the model standards 19 00:01:35,160 --> 00:01:42,240 of conduct for mediators that was revised in 2005. I will then talk about the California 20 00:01:42,240 --> 00:01:49,560 statutes on mediation confidentiality, the California case law on mediation confidentiality, 21 00:01:49,560 --> 00:01:59,920 evidence code section 1129 that became effective in 2019, evidence code 703.5, which talks about 22 00:01:59,920 --> 00:02:07,160 the competency of mediators, or actually the lack of competency of mediators to testify, 23 00:02:07,160 --> 00:02:14,040 and then quasi-judicial immunity, and then finally the exceptions to mediation confidentiality. 24 00:02:14,040 --> 00:02:15,800 So let us begin. 25 00:02:15,800 --> 00:02:24,360 So the first question we have is ethics. How would you define ethics? And one definition 26 00:02:24,360 --> 00:02:31,840 of ethics is that ethics is broadly applied social standards to determine the right and 27 00:02:31,840 --> 00:02:38,120 wrong in any given situation or means or a way to determine it. It is a way that we can 28 00:02:38,120 --> 00:02:46,800 all get together and get along together in the world without chaos. It Aristotle defined 29 00:02:46,800 --> 00:02:53,640 it the same way as a means of outlining or establishing each person's obligation or duties 30 00:02:53,640 --> 00:03:02,960 to each other, to themselves, and to society as a whole. Now, while ethics involves society 31 00:03:02,960 --> 00:03:11,320 as a whole, morals are individual and personal beliefs as to what is right and wrong. And 32 00:03:11,320 --> 00:03:17,720 so that is the difference between morals and ethics. So in order to make an ethical decision, 33 00:03:17,720 --> 00:03:24,600 we need three things. We need transparency, which is the open sharing of important information. 34 00:03:24,600 --> 00:03:30,120 We need informed consent, which is agreeing to an action based on understanding of the 35 00:03:30,120 --> 00:03:37,000 action and its consequences. And finally, we need effective listening, which is grasping 36 00:03:37,000 --> 00:03:43,840 the speaker's meaning. As you will see, there are no clear-cut answers. Ethics is not always 37 00:03:43,840 --> 00:03:51,000 black and white. Why is it important? It is important to build trust, to build relationships, 38 00:03:51,000 --> 00:03:57,760 to create fairness, and to create transparency. So let's talk about the model standards of 39 00:03:57,760 --> 00:04:06,880 conduct for mediators. They were originally enacted in 1994 and authored by the American 40 00:04:06,880 --> 00:04:13,280 Bar Association section of dispute resolution, the American Arbitration Association, and 41 00:04:13,280 --> 00:04:22,000 the Association for Conflict Resolution. They were revised in 2005. And when you're talking 42 00:04:22,000 --> 00:04:26,360 about the model standards, we're talking about three essential values, which I will get to 43 00:04:26,360 --> 00:04:32,760 in a minute. But what I would like to emphasize is that no one standard is absolute. No one 44 00:04:32,760 --> 00:04:40,280 standard has priority over the other, and no one standard overrides another. These standards 45 00:04:40,280 --> 00:04:46,840 are all aspirational. They are not rules of law or anything of that sort. What you have 46 00:04:46,840 --> 00:04:52,880 to do is look at the California statutes, the rules, and the regulations to see what 47 00:04:52,880 --> 00:05:01,080 they say. So as I mentioned, there are three essential values. And they are self-dispute 48 00:05:01,080 --> 00:05:06,960 and autonomy, which involves self-determination, a party's right to make choices based on one's 49 00:05:06,960 --> 00:05:14,320 personal beliefs and values, free of coercion and constraint. And it involves informed consent, 50 00:05:14,320 --> 00:05:20,360 which is a very important concept that I will get to in a moment. Then it also involves 51 00:05:20,360 --> 00:05:26,960 procedural fairness, which is the fairness of the process to reach the mediated result. 52 00:05:26,960 --> 00:05:32,080 And the standards involved with procedural fairness include impartiality, conflict of 53 00:05:32,080 --> 00:05:40,320 interest, confidentiality, quality of process. The last value is substantial fairness. That 54 00:05:40,320 --> 00:05:47,000 is whether the outcome is good enough, whether the mediated result is acceptable. Now, some 55 00:05:47,000 --> 00:05:54,320 mediators believe that substantive fairness is of no concern to them, whereas other mediators 56 00:05:54,320 --> 00:06:00,320 do believe that they should be concerned about whether the result is substantially fair. 57 00:06:00,320 --> 00:06:06,040 I will leave it to you and your own moral compass to decide whether you think substantive 58 00:06:06,040 --> 00:06:13,400 fairness is an important value to you or not. So let's look at the first standard. The first 59 00:06:13,400 --> 00:06:20,600 standard is self-determination. And it states that self-determination is the act of coming 60 00:06:20,600 --> 00:06:27,320 to a voluntary, unquestioned decision in which each party makes free and informed choices 61 00:06:27,320 --> 00:06:34,760 as to process an outcome. Now, I've highlighted informed because that is a loaded word. And 62 00:06:34,760 --> 00:06:43,200 if you look at the California Rules of Professional Conduct, Rule 1.0.1.0.1.0e, it defines informed 63 00:06:43,200 --> 00:06:51,120 consent as a person's agreement to a proposed course of conduct after the lawyer has communicated 64 00:06:51,120 --> 00:06:57,360 and explained the relevant circumstances, including the material risks and any actual 65 00:06:57,360 --> 00:07:03,520 and reasonably foreseeable adverse consequences to the proposed course of conduct. A more 66 00:07:03,520 --> 00:07:10,040 simple definition is found in Black's Law Dictionary, which means simply a person's 67 00:07:10,040 --> 00:07:15,440 agreement to allow something to happen made with full knowledge of the risks involved 68 00:07:15,440 --> 00:07:22,800 and the alternatives. So when you go back to the definition of self-determination, it 69 00:07:22,800 --> 00:07:29,800 is saying that it is the act of a party to reach a voluntary, unquestioned decision after 70 00:07:29,800 --> 00:07:35,840 the party makes a free and informed, that is, knows all of the benefits and risks and 71 00:07:35,840 --> 00:07:42,600 the possible adverse consequences of the decision that they are about to make. So let's go to 72 00:07:42,600 --> 00:07:50,040 the second part. So while we have self-determination, the standard then goes on to say that a mediator 73 00:07:50,040 --> 00:07:56,320 may need to balance such party self-determination with the mediator's duty to conduct a quality 74 00:07:56,320 --> 00:08:03,160 of process. And what this means is that while the party may have self-determination, the 75 00:08:03,160 --> 00:08:11,720 mediator may override it in the name of quality of process and make decisions separate and 76 00:08:11,720 --> 00:08:18,040 apart from that, which a party may want. For example, the mediator may decide to hold a 77 00:08:18,040 --> 00:08:23,320 caucus whereas the parties want a joint session or the mediator may decide to have a joint 78 00:08:23,320 --> 00:08:29,320 session or a session with attorneys only even though the parties disagree. The mediator 79 00:08:29,320 --> 00:08:36,240 may decide to not have a caucus confidential whereas the parties may want it as such or 80 00:08:36,240 --> 00:08:43,080 the mediator may decide to terminate a mediation against the parties' desires or even to keep 81 00:08:43,080 --> 00:08:52,640 going against the parties' desires. But then we go to A.2 of this standard that while self-determination 82 00:08:52,640 --> 00:08:58,560 is key here, it then goes on to say that a mediator cannot personally ensure that each 83 00:08:58,560 --> 00:09:04,480 party has made free and informed choices to reach a particular decision. And so simply 84 00:09:04,480 --> 00:09:11,160 should refer them or make them aware of consulting other professionals to help them make that 85 00:09:11,160 --> 00:09:18,440 informed choice. So as you can sort of sense this first standard is inconsistent or there's 86 00:09:18,440 --> 00:09:24,480 tension in it and that while the first part says that self-determination is all important, 87 00:09:24,480 --> 00:09:30,800 the second part says a mediator can override it and the third part says that a mediator 88 00:09:30,800 --> 00:09:38,680 cannot even ensure the self-determination. Now or that a party has made a free and informed 89 00:09:38,680 --> 00:09:49,680 choice. And when we're talking about self-determination, you have to think in terms of that it can 90 00:09:49,680 --> 00:09:56,320 involve either internal threats or external threats. And by internal threats, I'm talking 91 00:09:56,320 --> 00:10:03,240 about physical or mental conditions such as a mental capacity or mental competency. And 92 00:10:03,240 --> 00:10:10,120 by external threats, I'm talking about situational ones such as coercion, duress, ignorance of 93 00:10:10,120 --> 00:10:15,920 the law, ignorance of one's rights or even time limitations. For example, somebody has 94 00:10:15,920 --> 00:10:22,280 a plane to catch by two o'clock and so the time for mediation is limited. Also, you have 95 00:10:22,280 --> 00:10:30,520 to think about how much information is sufficient for a party to make a self-determining decision. 96 00:10:30,520 --> 00:10:35,800 That is, some parties may want to know every bit and every scrap of information there is 97 00:10:35,800 --> 00:10:41,160 before making the decision, whereas other parties may not want to know anything. They 98 00:10:41,160 --> 00:10:46,160 just want to be done with it. They want out of there very quickly, sign on the dotted 99 00:10:46,160 --> 00:10:52,680 line and let's go and they do not want to know anything. So you have to think in terms 100 00:10:52,680 --> 00:11:00,640 of each party's own definition of self-determination. So let's go on to the next standard. And this 101 00:11:00,640 --> 00:11:06,920 is impartiality and this is part of procedural fairness. And when we talk about procedural 102 00:11:06,920 --> 00:11:12,800 fairness, we're talking about the mediator staying out of the substantive side of the 103 00:11:12,800 --> 00:11:20,160 dispute and is simply instituting a procedure that encourages fair play and that treats 104 00:11:20,160 --> 00:11:26,640 the disputants with dignity and with respect. So when we talk about impartiality, we're 105 00:11:26,640 --> 00:11:36,040 talking the standard provides that a mediator shall decline a mediation if the mediator 106 00:11:36,040 --> 00:11:42,840 cannot conduct it in an impartial manner. And impartiality means freedom from favoritism, 107 00:11:42,840 --> 00:11:49,840 bias, or prejudice. And that a mediator shall not act with partiality or prejudice based 108 00:11:49,840 --> 00:11:56,720 on any party's personal characteristics, background, values, beliefs, or performance 109 00:11:56,720 --> 00:12:04,520 at a mediation or any other reason. Now, you ask, okay, is it okay for me to give information 110 00:12:04,520 --> 00:12:10,880 or advice to one party and not to the other? Many mediators will say yes. Other mediators 111 00:12:10,880 --> 00:12:16,400 will think perhaps you're being partial by doing that. Now, when we talk about impartiality, 112 00:12:16,400 --> 00:12:24,280 we have to distinguish that term from neutrality. Impartiality is defined as having no favorites 113 00:12:24,280 --> 00:12:31,000 that is during the process of the mediation, the mediator treats each party in the exact 114 00:12:31,000 --> 00:12:37,200 same way, takes no sides, regardless of their personal characteristics. Whereas the term 115 00:12:37,200 --> 00:12:42,960 neutrality means simply that the mediator does not interfere with the substance of the 116 00:12:42,960 --> 00:12:48,760 dispute. The mediator remains indifferent to the result and well-being of the parties 117 00:12:48,760 --> 00:12:54,800 and is disinterested in the result. Obviously, the mediator would like to see the case settled, 118 00:12:54,800 --> 00:13:01,240 but is not concerned with the particular terms. So in essence, impartiality is defined by 119 00:13:01,240 --> 00:13:07,600 the mediators' behavior and action during the mediation, while neutrality is defined 120 00:13:07,600 --> 00:13:15,480 by the mediators' lack of interest and the outcome of the dispute. And as I said, more 121 00:13:15,480 --> 00:13:19,720 specifically the actual terms of any potential settlement. 122 00:13:19,720 --> 00:13:26,320 So let's go to conflict of interest. But before I do, I also want to mention one more point 123 00:13:26,320 --> 00:13:32,360 about impartiality. We all have biases. We all have implicit biases. We all have explicit 124 00:13:32,360 --> 00:13:41,360 biases. The trick with impartiality is to avoid explicit favoritism and bias in word 125 00:13:41,360 --> 00:13:51,880 and in action. That is, while we may have our own biases, we cannot show them. We cannot 126 00:13:51,880 --> 00:13:58,600 externally manifest those prejudices, biases, or favoritisms, in other words, we have to 127 00:13:58,600 --> 00:14:06,880 separate our feelings and views from our conduct and keep our biases, our prejudices, to ourselves 128 00:14:06,880 --> 00:14:15,440 and treat everyone equally and impartially. So on to conflicts of interest. A mediator 129 00:14:15,440 --> 00:14:21,840 shall avoid a conflict of interest or the appearance during and after a mediation. This 130 00:14:21,840 --> 00:14:28,120 is going to be a reasonable person standard. And it can arise due to the subject matter 131 00:14:28,120 --> 00:14:34,760 of the dispute or from past, present, personal, professional relationships between the mediator 132 00:14:34,760 --> 00:14:43,440 and any participant that reasonably raises the question of whether the mediator is impartial. 133 00:14:43,440 --> 00:14:50,120 And as I said, context matters. One must make a reasonable inquiry into the facts. So for 134 00:14:50,120 --> 00:14:57,280 example, if I meet what turns out to be a party to my mediation at the Grace Restore 135 00:14:57,280 --> 00:15:04,000 and talk for five minutes, that doesn't create a conflict of interest. But for example, if 136 00:15:04,000 --> 00:15:09,440 one of the parties is one that I've been having lunch with every week for the last year, that 137 00:15:09,440 --> 00:15:16,080 could conceivably create a conflict of interest. So conflict, so the context is critical and 138 00:15:16,080 --> 00:15:23,600 inquiry must be made into the context. And as I said, it is a reasonable person standard. 139 00:15:23,600 --> 00:15:29,440 And if there is a conflict, you must disclose it as soon as practical, whether it's an actual 140 00:15:29,440 --> 00:15:38,040 or potential conflict. And the conflict can arise even after you've accepted the mediation. 141 00:15:38,040 --> 00:15:46,720 And you must disclose it. It is a two step process. If you disclose the conflict, and 142 00:15:46,720 --> 00:15:53,040 the parties agree to waive it, you then must ask yourself if the conflict might be reasonably 143 00:15:53,040 --> 00:15:59,480 viewed as undermining the integrity of the mediation. And if so, you as the mediator 144 00:15:59,480 --> 00:16:05,560 should withdraw even though the parties are agreeing to waive it and do not feel that 145 00:16:05,560 --> 00:16:13,520 it is conflict. And then even after the mediation, you have to be careful about establishing relationships 146 00:16:13,520 --> 00:16:18,920 with any of the parties because it may raise a question in terms of the integrity of the 147 00:16:18,920 --> 00:16:26,960 mediation. For example, whether your actions will infect a quid pro quo, whether you've 148 00:16:26,960 --> 00:16:33,920 got some type of reward or additional income or recompense for the way you acted at the 149 00:16:33,920 --> 00:16:40,280 mediation. So even after the mediation is over, you have to be careful about your relationships 150 00:16:40,280 --> 00:16:47,720 with the parties. The next is competence. And obviously, a mediator has to be competent 151 00:16:47,720 --> 00:16:53,840 and has to have the competence that is necessary to satisfy the reasonable expectations of 152 00:16:53,840 --> 00:17:00,400 the parties. I've highlighted reasonable expectations because if you think about it, you would have 153 00:17:00,400 --> 00:17:05,240 to really cross examine the parties to figure out what the reasonable expectations are. 154 00:17:05,240 --> 00:17:12,560 So I'm not quite sure how realistic this term is. Now, obviously, your competency will be 155 00:17:12,560 --> 00:17:19,040 based upon training, experience and mediation skills and cultural understandings. And I 156 00:17:19,040 --> 00:17:26,680 do highlight cultural understandings because I think as you're aware, County of LA or Los 157 00:17:26,680 --> 00:17:33,080 Angeles area, Southern California is quite diverse when it comes to cultural backgrounds. 158 00:17:33,080 --> 00:17:39,120 I believe that the Los Angeles Superior Court has interpreted and interpreter services for 159 00:17:39,120 --> 00:17:45,920 more than 140 languages. So you have to be culturally sensitive when you mediate. If 160 00:17:45,920 --> 00:17:51,480 you take on a mediation and at a certain point during the mediation, you feel that you're 161 00:17:51,480 --> 00:17:58,440 not competent, you have a duty to advise the parties immediately, discuss it with them. 162 00:17:58,440 --> 00:18:04,880 And if necessary, request appropriate assistance or to withdraw from the mediation altogether. 163 00:18:04,880 --> 00:18:13,440 And obviously, if you are impaired by drugs, by prescription medicine, by alcohol or whatnot, 164 00:18:13,440 --> 00:18:21,080 you should not be mediating. You should simply postpone, terminate or withdraw from the mediation. 165 00:18:21,080 --> 00:18:27,720 Now confidentiality is something that I will get into in more particular, more particularly 166 00:18:27,720 --> 00:18:34,240 in a few minutes. But I just want to mention the standard that obviously a mediator shall 167 00:18:34,240 --> 00:18:41,000 maintain the confidentiality of all information obtained by the mediator in mediation unless 168 00:18:41,000 --> 00:18:47,080 otherwise agreed to by the parties or required by applicable law. Now California does have 169 00:18:47,080 --> 00:18:56,760 a mandated reporter statute, which is contained in penal code section 11165.7. And this section 170 00:18:56,760 --> 00:19:04,600 lists over 43 different types of mandated reporters. Lawyers per se are not mandated 171 00:19:04,600 --> 00:19:10,720 reporters. Mandated, if you look at the statute, mandated reporters typically involve those 172 00:19:10,720 --> 00:19:23,560 in the educational field and in the medical field and elsewhere. For example, a emergency 173 00:19:23,560 --> 00:19:30,400 medical technician, a physician, a surgeon, a marriage and family therapist trainee, a 174 00:19:30,400 --> 00:19:37,400 coroner, a medical examiner, a social worker, a district attorney investigator, a peace officer 175 00:19:37,400 --> 00:19:47,680 are part or one of the over 43 different categories listed as mandated reporters. And if you are 176 00:19:47,680 --> 00:19:54,520 by chance a mandated reporter, that duty will override the mediation confidentiality. In 177 00:19:54,520 --> 00:20:00,000 other words, just because you are mediating does not mean that you take off your mandated 178 00:20:00,000 --> 00:20:07,880 reporter hat. It is still there. And you are obligated to tell the parties that you are 179 00:20:07,880 --> 00:20:14,800 a mandated reporter so that if something comes up regarding elder abuse, elder neglect, child 180 00:20:14,800 --> 00:20:21,280 abandonment, child neglect, that you may be obligated to report it to the authorities. 181 00:20:21,280 --> 00:20:28,440 All right. So the next standard is quality of process. And this, I think, is a very important 182 00:20:28,440 --> 00:20:34,640 standard. And it provides that a mediator shall conduct a mediation in a manner that 183 00:20:34,640 --> 00:20:41,920 promotes diligence, timeliness, safety, presence of the appropriate parties, party participation, 184 00:20:41,920 --> 00:20:50,480 procedural fairness, and party competency. And A4 is important because it says a mediator 185 00:20:50,480 --> 00:20:58,840 shall promote honesty and candor among, between the parties. And a mediator shall not knowingly 186 00:20:58,840 --> 00:21:06,840 misrepresent any material fact or circumstance in the course of a mediation. Now, some take 187 00:21:06,840 --> 00:21:15,200 this to mean a positive or a conscious misrepresentation, whereas others say no, mediation by silence 188 00:21:15,200 --> 00:21:25,120 or omission will be important as well. I take A4 to mean that you cannot misrepresent 189 00:21:25,120 --> 00:21:32,480 either by omission or by commission any material fact or circumstance in the course of mediation. 190 00:21:32,480 --> 00:21:40,880 Now, there are certain circumstances where there is a duty to affirmatively speak. For 191 00:21:40,880 --> 00:21:46,680 example, where silence would lead the other party in the dark about important information 192 00:21:46,680 --> 00:21:53,720 relating to the transaction and that other party does not have access to that vital information, 193 00:21:53,720 --> 00:22:00,120 where customs of the trade or other objective circumstances would lead a reasonable expectation 194 00:22:00,120 --> 00:22:07,040 to disclose, where there is a fiduciary or confidential relationship existing, where 195 00:22:07,040 --> 00:22:12,840 there may be a special statutory obligation, such as with insurance contracts, or where 196 00:22:12,840 --> 00:22:18,560 a party makes a partial disclosure that is misleading, or to update and correct previously 197 00:22:18,560 --> 00:22:25,960 disclosed information. These are circumstances where a, where silence is a no-no, because 198 00:22:25,960 --> 00:22:36,640 there is a duty to affirmatively speak. A5 is also important. I've highlighted the sentence, 199 00:22:36,640 --> 00:22:42,160 a mediator may provide information that the mediator is qualified by training or experience 200 00:22:42,160 --> 00:22:48,560 to provide, only if the mediator can do so consistent with these standards. That means 201 00:22:48,560 --> 00:22:54,360 that as a mediator, you can provide information if you're qualified to do so. Now, there is 202 00:22:54,360 --> 00:23:01,560 a difference between information and advice. Information is simply providing the statute, 203 00:23:01,560 --> 00:23:06,320 for example, in a landlord-tenant matter. You simply tell the people what the statutes 204 00:23:06,320 --> 00:23:13,520 are regarding landlord-tenant law. Advice is when you go on and apply that statute or 205 00:23:13,520 --> 00:23:20,400 that information to the matter at hand. And this will become very tricky if you are mediating 206 00:23:20,400 --> 00:23:27,680 with self-represented parties, because obviously they may not know the law. So you simply may 207 00:23:27,680 --> 00:23:33,320 want, you may feel inclined to explain to them what the statute says or what the law 208 00:23:33,320 --> 00:23:37,960 says. But invariably, their next question will be something to the effect of, well, 209 00:23:37,960 --> 00:23:45,000 how does that apply to me and to my case? At that point, you are giving advice and you 210 00:23:45,000 --> 00:23:52,080 are taking on the role of being an attorney as opposed to maintaining your neutrality 211 00:23:52,080 --> 00:23:59,880 and impartiality as a mediator. So when I teach this Mediation Ethics, I always tell 212 00:23:59,880 --> 00:24:06,680 my students that it's a very slippery slope between providing information and giving advice, 213 00:24:06,680 --> 00:24:18,000 and you really have to be careful in doing so. The next subpart is also important, and 214 00:24:18,000 --> 00:24:23,760 it says that a mediator shall not undertake an additional dispute resolution role in the 215 00:24:23,760 --> 00:24:29,680 same matter without the consent of the parties. And before providing such service, the mediator 216 00:24:29,680 --> 00:24:34,560 shall inform the parties of the implication of the change in process and obtain their 217 00:24:34,560 --> 00:24:41,560 consent to the change. Now, where this may come up is either doing a mediation slash 218 00:24:41,560 --> 00:24:48,840 arbitration or arbitration slash mediation. In a MedARB, you may start out as a mediator, 219 00:24:48,840 --> 00:24:53,240 and if the parties can't reach an agreement, you then become the arbitrator, and this is 220 00:24:53,240 --> 00:25:00,360 where A8 would fit in, or vice versa, you start out as an arbitrator, but you withhold 221 00:25:00,360 --> 00:25:08,000 your decision, and you withhold your decision and then allow the parties to try to mediate 222 00:25:08,000 --> 00:25:15,280 to resolve it after they know all the facts. The next standard is also important. If a mediation 223 00:25:15,280 --> 00:25:21,200 is being used to further criminal conduct, the mediator should take appropriate steps, 224 00:25:21,200 --> 00:25:26,960 including postponing, withdrawing, or terminating. Note that I've underlined the word should 225 00:25:26,960 --> 00:25:32,920 or I've highlighted it, which means you should do it, but you don't necessarily have to. 226 00:25:32,920 --> 00:25:37,840 If you read the model standards of conduct, you'll notice that in some places they use 227 00:25:37,840 --> 00:25:44,000 the word shall, which as we know is mandatory, and other places they use the word should, 228 00:25:44,000 --> 00:25:51,080 which is permissive. And also note that this subpart says that the mediation is being used 229 00:25:51,080 --> 00:25:57,080 to further criminal conduct. So if the criminal conduct has already occurred, then this section 230 00:25:57,080 --> 00:26:06,000 may not apply. It's only when the mediation itself is being used as a criminal device. 231 00:26:06,000 --> 00:26:11,720 And then number 10 says that if a party has difficulty comprehending the process, issues, 232 00:26:11,720 --> 00:26:18,120 or settlement options, the mediator can make accommodations so that the party does have 233 00:26:18,120 --> 00:26:24,160 the capacity to comprehend, participate, and exercise self-determination. So this is all 234 00:26:24,160 --> 00:26:31,520 well and fine, but if you think back to the standard on impartiality, my question to you 235 00:26:31,520 --> 00:26:38,760 is that if a mediator does make accommodations so that one party can understand what's going 236 00:26:38,760 --> 00:26:46,800 on, is the mediator then being partial, contrary to the standard on impartiality? As I said 237 00:26:46,800 --> 00:26:52,080 before, if you look at these standards, you will see that there is a lot of tension or 238 00:26:52,080 --> 00:26:58,400 inconsistency among them, and you may find at times that you feel that you're getting 239 00:26:58,400 --> 00:27:08,440 twisted up like a pretzel in order to abide by all of them at the same time. Another standard, 240 00:27:08,440 --> 00:27:14,160 which I don't have listed here, and this goes back to the mandated reporter statute is subpart 241 00:27:14,160 --> 00:27:20,240 B, and it provides that if a mediator is made aware of domestic abuse or violence among 242 00:27:20,240 --> 00:27:26,240 the parties, the mediator shall take appropriate action, which includes postponing, withdrawing, 243 00:27:26,240 --> 00:27:31,600 or terminating. And again, if you are a mandated reporter, you may have to take the additional 244 00:27:31,600 --> 00:27:40,680 step of reporting it to the appropriate authority. Now, subpart C, which is on the slide, provides 245 00:27:40,680 --> 00:27:48,160 that if a mediator believes that the conduct of a party jeopardizes conducting the mediation 246 00:27:48,160 --> 00:27:53,600 consistent with the standards, the mediator shall take the appropriate steps of postponing, 247 00:27:53,600 --> 00:27:59,280 withdrawing, or terminating. Typically, the only thing that you can do under these model 248 00:27:59,280 --> 00:28:05,640 standards of conduct when you feel that one of them is being violated is to postpone, 249 00:28:05,640 --> 00:28:12,720 withdraw, or terminate. Typically, you cannot notify any authority that is beyond the realm 250 00:28:12,720 --> 00:28:19,120 of these standards or the realm of what is permissible under these standards. 251 00:28:19,120 --> 00:28:25,640 So since we are, I'm dealing or talking with attorneys, I will get into a couple rules. 252 00:28:25,640 --> 00:28:30,680 But first, I want to talk about substantive fairness. As I said, some mediators believe 253 00:28:30,680 --> 00:28:36,800 it is important, others believe it is not. So I will raise the question to you. Do you 254 00:28:36,800 --> 00:28:41,320 think you ought to be concerned about the fairness of the result? And how would you 255 00:28:41,320 --> 00:28:46,840 define fair? Would you define it based upon your own belief system, based upon laws or 256 00:28:46,840 --> 00:28:54,280 regulations or legal rules, or on your own approach to ethics? But now, let's go look 257 00:28:54,280 --> 00:29:00,440 at some California rules of professional conduct since you are attorneys. Rule 1.12, 258 00:29:00,440 --> 00:29:08,480 provides that a lawyer shall not represent anyone in connection with a matter in which 259 00:29:08,480 --> 00:29:17,520 they participated as a mediator without the informed consent, written consent of all the 260 00:29:17,520 --> 00:29:26,760 parties. If they do not have that informed written consent under the ABA model standard, 261 00:29:26,760 --> 00:29:31,480 then the lawyer would have to be screened from participating in the matter. The lawyer 262 00:29:31,480 --> 00:29:37,200 would not be able to receive any part of the fee and must give written notice of the fact 263 00:29:37,200 --> 00:29:44,360 promptly to all the parties. However, that is the model ABA rule. California inserted 264 00:29:44,360 --> 00:29:52,480 what I've highlighted as C1, that the prohibition does not arise from the lawyer's service 265 00:29:52,480 --> 00:30:00,400 as a mediator. And what this means is simply put that if you acted as a mediator in a matter, 266 00:30:00,400 --> 00:30:07,320 you cannot later represent the parties. And the reason that, and if you look at the executive 267 00:30:07,320 --> 00:30:14,760 summary to this rule, you will see that it notes that the provision excludes from the 268 00:30:14,760 --> 00:30:21,080 availability of screening lawyers who previously served as mediators or settlement judges. 269 00:30:21,080 --> 00:30:26,960 The change was made because permitting screening of settlement judges and mediators who not 270 00:30:26,960 --> 00:30:32,880 only received confidential information from the parties but actively seek such information 271 00:30:32,880 --> 00:30:38,360 would reduce confidence in the administration of justice. The executive summary cites a 272 00:30:38,360 --> 00:30:49,920 case, CHO, CHO versus Superior Court 39, Cal App 4, 113 at page 125. It's a 1995 case 273 00:30:49,920 --> 00:30:55,920 that held that no amount of screening of a settlement judge who had received confidential 274 00:30:55,920 --> 00:31:01,600 information could assuage the concerns of the parties to the settlement discussions. 275 00:31:01,600 --> 00:31:11,520 So whereas in other states, a lawyer who acted as mediator may potentially later represent 276 00:31:11,520 --> 00:31:19,400 the parties in California because we've inserted this C1, it is an absolute no, no, and cannot 277 00:31:19,400 --> 00:31:28,320 be done. Now the next rule of interest is rule 2.5, which is lawyer as a third party neutral. 278 00:31:28,320 --> 00:31:34,320 A lawyer serving as a third party neutral shall inform the unrepresented parties that 279 00:31:34,320 --> 00:31:40,680 the lawyer is not representing them. And the lawyer must take pains or take great pains 280 00:31:40,680 --> 00:31:47,560 to make sure that the self-represented party understands the difference between the lawyer 281 00:31:47,560 --> 00:31:54,880 as an advocate or representing a party and the lawyer as a third party neutral who is 282 00:31:54,880 --> 00:32:01,760 acting impartially and has no favorites. And one of my colleagues actually may have self-represented 283 00:32:01,760 --> 00:32:08,320 parties sign an acknowledgement form acknowledging the difference and the fact that the lawyer 284 00:32:08,320 --> 00:32:15,480 is not there to represent them. So let's go on to confidentiality. And when we talk about 285 00:32:15,480 --> 00:32:21,840 confidentiality, we are talking about the ultimate self-determination because a party 286 00:32:21,840 --> 00:32:28,440 has the absolute right to decide what information remains private and what information to share 287 00:32:28,440 --> 00:32:36,760 and not share. And so disclosure is strictly voluntary, which in essence is self-determination. 288 00:32:36,760 --> 00:32:42,640 And when we talk about self-determination, let me go back, when we talk about self-determination, 289 00:32:42,640 --> 00:32:49,520 we're talking about something that is intended to be kept secret. The notion of confidentiality 290 00:32:49,520 --> 00:32:56,960 refers to a voluntary agreement among parties to keep information secret. When you say something 291 00:32:56,960 --> 00:33:02,080 is privileged, you're simply referring to the protection of information from compelled 292 00:33:02,080 --> 00:33:11,480 disclosure. That is, you're talking about the ability of third parties to compel disclosure 293 00:33:11,480 --> 00:33:17,400 when it is limited. So confidentiality is merely a voluntary agreement among parties 294 00:33:17,400 --> 00:33:24,920 to keep something secret. So let's look at the history of confidentiality in California. 295 00:33:24,920 --> 00:33:34,840 In 1965, evidence code section 1152 was enacted. In 1980s, it was replaced by the confidentiality 296 00:33:34,840 --> 00:33:44,400 referring to mediation section 1152.5. Then section 703.5, which relates to the incompetency 297 00:33:44,400 --> 00:33:51,840 of a mediator to testify, except in certain instances, was enacted in 1993. And then our 298 00:33:51,840 --> 00:33:59,960 present evidence code sections 1115 to 1128 were enacted in 1997. And then 1129 of the 299 00:33:59,960 --> 00:34:11,480 evidence code was enacted in 2019. So let's look at the model standard more specifically, 300 00:34:11,480 --> 00:34:17,520 standard five. A mediator shall maintain the confidentiality of all information obtained 301 00:34:17,520 --> 00:34:25,560 by the mediator during mediation unless otherwise agreed to, or as required by applicable law. 302 00:34:25,560 --> 00:34:33,640 And I refer to the mandated reporter statute. And required by applicable law is important 303 00:34:33,640 --> 00:34:41,320 as I've noted. And if the parties to a mediation agree that the mediator may disclose the information, 304 00:34:41,320 --> 00:34:47,600 then the mediator may do so. A mediator shall not communicate to any non-party what went 305 00:34:47,600 --> 00:34:55,880 on during the mediation. As you look at the California Rules of Court and also the U.S. 306 00:34:55,880 --> 00:35:01,080 District Court rules, you'll note that the only thing that a mediator can report is whether 307 00:35:01,080 --> 00:35:06,640 the parties appeared at the mediation, the mediation went forward, and whether the parties 308 00:35:06,640 --> 00:35:13,360 settled or didn't settle. You cannot go into the details of what occurred at the mediation, 309 00:35:13,360 --> 00:35:19,920 why it didn't settle, what the impasse was, or whatever. If the mediator, okay, if the 310 00:35:19,920 --> 00:35:25,240 mediator participates in teaching, research, or evaluation, the mediator has to protect 311 00:35:25,240 --> 00:35:35,440 the anonymity of the parties and abide by their reasonable expectations regarding confidentiality. 312 00:35:35,440 --> 00:35:42,220 And when you meet with a party in caucus, for example, if you meet with party A in caucus, 313 00:35:42,220 --> 00:35:48,240 what goes on in that caucus, you must keep to yourself and cannot convey to the parties 314 00:35:48,240 --> 00:35:55,400 to party B in another caucus unless party A says it's okay to tell party B. So in other 315 00:35:55,400 --> 00:36:02,120 words, what goes on in caucus stays in caucus and you cannot share it among the caucuses. 316 00:36:02,120 --> 00:36:07,360 And you have to promote an understanding among the parties to the extent that there will 317 00:36:07,360 --> 00:36:13,200 be confidentiality and the parties can make up their own rules regarding confidentiality 318 00:36:13,200 --> 00:36:19,520 or use your own rules or accepted practices of what will be confidential and what will 319 00:36:19,520 --> 00:36:28,680 not be confidential. So why do we have confidentiality? Three main reasons. Trust in the mediator 320 00:36:28,680 --> 00:36:36,720 and in the process to strengthen the concept of mediator impartiality to preserve the integrity 321 00:36:36,720 --> 00:36:44,360 of the process or to sum up to maintain trust, encourage forthright disclosure, and to preserve 322 00:36:44,360 --> 00:36:50,720 the party's faith in the process. That is why confidentiality is urged as being invalid. 323 00:36:50,720 --> 00:36:58,560 Now, there are additional reasons to promote candor, to promote fairness, mediator neutrality 324 00:36:58,560 --> 00:37:05,000 for privacy reasons, obviously, to protect the mediator. The mediator does not want to 325 00:37:05,000 --> 00:37:11,640 be forced to testify, does not want to be involved in any legal actions or be harassed 326 00:37:11,640 --> 00:37:20,440 in any way. Candid discussion during mediation often leads to successful mediations and successful 327 00:37:20,440 --> 00:37:28,120 mediations will encourage their future use and it will help the court because it will 328 00:37:28,120 --> 00:37:40,160 often or limited their caseload and help them resolve litigation more expeditiously. 329 00:37:40,160 --> 00:37:46,320 So there are three levels of confidentiality. The entire mediation itself is confidential. 330 00:37:46,320 --> 00:37:52,480 What goes on in each caucus is confidential and what you can't tell the judge or court 331 00:37:52,480 --> 00:37:58,160 or others. So in other words, if a case does not settle and the parties have to report 332 00:37:58,160 --> 00:38:04,280 to a for a post mediation status conference, the only thing they can tell the court is 333 00:38:04,280 --> 00:38:10,200 that the parties appeared for mediation and that it settled or it did not settle and that 334 00:38:10,200 --> 00:38:19,880 is it. So when you talk about mediation confidentiality, you're talking about two areas. One is evidence. 335 00:38:19,880 --> 00:38:27,240 It has it's a rule of admissibility in California. Our evidence code provides that it is neither 336 00:38:27,240 --> 00:38:33,440 admissible or discoverable. Other states may deem it to be a privilege, which about which 337 00:38:33,440 --> 00:38:40,520 amounts to the same thing. But it's also involved in mediation ethics and that a mediator is 338 00:38:40,520 --> 00:38:47,520 constrained from revealing information to the other side or outside of the mediation in 339 00:38:47,520 --> 00:38:54,000 terms of what occurred, which means that you cannot post anything on social media. If you 340 00:38:54,000 --> 00:39:00,320 go to a party, you cannot start discussing what happened at mediation. You as a mediator, 341 00:39:00,320 --> 00:39:06,840 you are constrained from disclosing or revealing information to anyone about what occurred 342 00:39:06,840 --> 00:39:14,720 during the mediation. So let's look at the California Evans Code Statutes. They are 343 00:39:14,720 --> 00:39:23,120 sections 1115 to 1129. And 1115 sets out the definitions. It sets out the definition of 344 00:39:23,120 --> 00:39:32,400 mediation as being a facilitated negotiation. It is a process by which a third party helps 345 00:39:32,400 --> 00:39:39,760 other parties assist them in reaching a mutually acceptable agreement. Now, be careful when 346 00:39:39,760 --> 00:39:47,400 you look at the definition of mediator, because it not only includes the mediator himself 347 00:39:47,400 --> 00:39:54,160 or herself, but it also includes any person designated by the mediator to assist in the 348 00:39:54,160 --> 00:40:00,720 mediation or to communicate with the parties to prepare for a mediation. In other words, 349 00:40:00,720 --> 00:40:09,480 mediator includes your case manager or your assistant who is setting up, who is helping 350 00:40:09,480 --> 00:40:17,280 you set up the mediation. And this becomes important when you look at mediation consultation, 351 00:40:17,280 --> 00:40:22,720 because that means any communication between a person and a mediator for the purpose of 352 00:40:22,720 --> 00:40:29,040 initiating, considering, or reconvening a mediation or retaining the mediator. And what 353 00:40:29,040 --> 00:40:36,960 this means is that when somebody calls and talks to your case manager or assistant about 354 00:40:36,960 --> 00:40:44,120 setting up a mediation or initiating it, that is a mediation consultation. And because your 355 00:40:44,120 --> 00:40:51,680 case manager is defined as a mediator, all of everything that is said in that conversation 356 00:40:51,680 --> 00:40:58,840 will be covered by mediation confidentiality. So mediation confidentiality attaches the moment 357 00:40:58,840 --> 00:41:04,400 that somebody talks to your assistant about setting up a mediation with you or whether 358 00:41:04,400 --> 00:41:15,240 it is even feasible, because if you look at the definition in 1119A and B, it provides 359 00:41:15,240 --> 00:41:24,160 that no evidence of anything said or any admission of any writing or oral communication made 360 00:41:24,160 --> 00:41:30,920 for the purpose of and the course of or pursuant to a mediation or mediation consultation is 361 00:41:30,920 --> 00:41:39,520 admissible or subject to discovery and disclosure cannot be compelled in any non-criminal proceeding. 362 00:41:39,520 --> 00:41:48,320 That is in any arbitration and any administrative agitation or any civil action. So as I said, 363 00:41:48,320 --> 00:41:54,360 the moment that somebody talks to your case manager, that is a mediation consultation 364 00:41:54,360 --> 00:42:02,600 and is deemed covered by mediation confidentiality. Part C is a little bit broader and it provides 365 00:42:02,600 --> 00:42:10,200 that all communications, negotiations or settlement discussions by and between the parties in 366 00:42:10,200 --> 00:42:16,520 the course of a mediation or mediation consultation shall remain confidential. And this does include 367 00:42:16,520 --> 00:42:26,040 conduct that is intended as an assertion. So if you walk into a caucus and you ask a question 368 00:42:26,040 --> 00:42:32,520 and somebody either shakes their head or nods their head or raises their thumb or gives 369 00:42:32,520 --> 00:42:42,520 you a high five, some sort of assertive conduct that will be covered by mediation confidentiality. 370 00:42:42,520 --> 00:42:50,480 So California evidence code 1120 essentially says that evidence that would otherwise be 371 00:42:50,480 --> 00:42:58,000 admissible or subject to disclosure as part of discovery does not suddenly become inadmissible 372 00:42:58,000 --> 00:43:05,920 because it was used during a mediation. So for example, if during a mediation you have 373 00:43:05,920 --> 00:43:12,200 the parties using answers to interrogatories or shows you a video or a document that was 374 00:43:12,200 --> 00:43:18,800 produced in the normal course of discovery, it does not all of a sudden get covered by 375 00:43:18,800 --> 00:43:28,080 mediation confidentiality. It will still be admissible or otherwise discoverable. And 376 00:43:28,080 --> 00:43:38,000 in contrast, evidence that is created or produced solely for use and mediation will be covered 377 00:43:38,000 --> 00:43:44,840 by mediation confidentiality. There is a case called Roe Haas versus Superior Court, 15 378 00:43:44,840 --> 00:43:55,320 Cal Reporter 643 or 33 Cal 4407 decided by the Supreme Court in 2004. And what happened 379 00:43:55,320 --> 00:44:04,160 was the owner of an apartment building sued the general contractor for mold and toxic fumes 380 00:44:04,160 --> 00:44:11,720 in the apartment building. And as part of the mediation, they hired experts to look at 381 00:44:11,720 --> 00:44:19,360 the toxic mold and other stuff and to make reports. That matter settled. The tenants 382 00:44:19,360 --> 00:44:26,880 then sued the landlord and they wanted those expert reports. And the Supreme Court said, 383 00:44:26,880 --> 00:44:34,840 no, they are not available because the experts provided those reports on the mold and other 384 00:44:34,840 --> 00:44:43,440 toxic materials solely and only as part of the mediation. So they are not discoverable. 385 00:44:43,440 --> 00:44:52,580 Now evidence code section 1120 goes on to say that the chapter does not limit the admissibility 386 00:44:52,580 --> 00:44:57,840 of an agreement to mediate a dispute, the effect of an agreement not to take a default 387 00:44:57,840 --> 00:45:03,160 or an agreement to extend the time within which to act or refrain from acting and a 388 00:45:03,160 --> 00:45:09,160 pending civil action or disclosing of the mere fact that a mediator served is served 389 00:45:09,160 --> 00:45:19,000 will serve or was contacted about serving. And it also codifies the decision in LAP versus 390 00:45:19,000 --> 00:45:27,640 the Superior Court, which held that the declarations of income and expense or the financial disclosure 391 00:45:27,640 --> 00:45:34,040 statements required by the family code do not suddenly become inadmissible because they 392 00:45:34,040 --> 00:45:39,720 were used as part of a mediation. And LAP versus Superior Court, the husband and wife 393 00:45:39,720 --> 00:45:50,200 went to mediation in order to settle the property and support obligations as part of a divorce 394 00:45:50,200 --> 00:45:57,360 and their income and expense disclosure statements were produced. The husband later sought to 395 00:45:57,360 --> 00:46:04,120 have them excluded in a subsequent civil proceeding saying they were used as part of the mediation. 396 00:46:04,120 --> 00:46:12,400 And ultimately the appellate court said no, and the Supreme Court denied certiorari of 397 00:46:12,400 --> 00:46:19,080 the case. So the fact that a declaration of disclosure or your income financial disclosure 398 00:46:19,080 --> 00:46:26,080 statement is produced as part of the family code does not and is then used in a mediation 399 00:46:26,080 --> 00:46:30,920 does not suddenly cloak it with mediation confidentiality. 400 00:46:30,920 --> 00:46:40,240 Now evidence code 1121 simply provides that you cannot be required to submit a report to 401 00:46:40,240 --> 00:46:47,880 the court regarding involving or including an assessment and evaluation or a recommendation 402 00:46:47,880 --> 00:46:54,000 of what went on at mediation. The only thing that you can submit, as I've said, is that 403 00:46:54,000 --> 00:46:58,760 the parties appeared for mediation and it settled or it did not settle. And that is 404 00:46:58,760 --> 00:47:07,920 it. Evidence code 1122 I have highlighted Bay 1 because it says that the only way that 405 00:47:07,920 --> 00:47:16,360 a communication occurring during mediation will become admissible is if all parties who 406 00:47:16,360 --> 00:47:22,680 conduct or otherwise participate in the mediation expressly agree in writing. In other words, 407 00:47:22,680 --> 00:47:28,920 the consent of the mediator is also needed. And I think a lot of folks don't realize that 408 00:47:28,920 --> 00:47:34,480 they need the consent of the mediator in order to waive confidentiality. Many probably think 409 00:47:34,480 --> 00:47:40,440 that as long as the parties consent that is sufficient. And so I wanted to point this 410 00:47:40,440 --> 00:47:42,640 out to you. 411 00:47:42,640 --> 00:47:49,640 Now the next statute is extremely important. 1123 provides that the only way that a written 412 00:47:49,640 --> 00:48:00,360 settlement agreement that was prepared during the mediation is is enforceable and that is 413 00:48:00,360 --> 00:48:07,040 admissible and is enforceable is if the agreement provides that it is admissible or subject 414 00:48:07,040 --> 00:48:12,720 to disclosure or words to that effect, or the agreement provides that it is enforceable 415 00:48:12,720 --> 00:48:19,200 or binding to words of that effect, or the parties agree, or that is being used to show 416 00:48:19,200 --> 00:48:27,360 fraud, duress, or illegality that is relevant to the issue and dispute. Now there was another 417 00:48:27,360 --> 00:48:34,520 Supreme Court decision called Fair versus Bakari, 51 Cal Reporter 3rd, 871 or 40 Cal 418 00:48:34,520 --> 00:48:41,200 Reporter 189. There the parties entered into a little one page settlement memorandum or 419 00:48:41,200 --> 00:48:47,800 agreement. And the very last paragraph simply provided that if a dispute arose regarding 420 00:48:47,800 --> 00:48:53,760 the documentation of the settlement, the parties agreed to arbitrate. Well as luck would have 421 00:48:53,760 --> 00:48:59,760 it, they could not agree on the documentation of the settlement agreement. So plaintiff 422 00:48:59,760 --> 00:49:06,000 asked the defense counsel to arbitrate. And the defendant said no, the agreement is neither 423 00:49:06,000 --> 00:49:12,560 admissible or enforceable. The trial court agreed, the appellate court reversed, the 424 00:49:12,560 --> 00:49:19,200 Supreme Court agreed with the trial court because the agreement did not have the magic 425 00:49:19,200 --> 00:49:25,820 terms in it or what I call the magic words that it provided that it was admissible or 426 00:49:25,820 --> 00:49:32,040 subject to disclosure or that it was enforceable or binding or words to that effect. The Supreme 427 00:49:32,040 --> 00:49:38,560 Court held that it was neither admissible or enforceable. And so the lesson to be learned 428 00:49:38,560 --> 00:49:46,840 is that in order to have a mediation settlement agreement enforceable or admissible, it must 429 00:49:46,840 --> 00:49:54,120 have these magic words in it. If it does not, then literally it is not worth the paper and 430 00:49:54,120 --> 00:50:03,440 the ink expended to create the agreement. Now, if it does come to pass that the parties 431 00:50:03,440 --> 00:50:12,880 file a motion to enforce the settlement pursuant to code of civil procedure section 664.6, 432 00:50:12,880 --> 00:50:18,240 the only thing that will be admissible is the settlement agreement itself. So the settlement 433 00:50:18,240 --> 00:50:23,760 agreement must be complete, it must have the backstory in it, it must have all representations 434 00:50:23,760 --> 00:50:31,800 and warranties because the court cannot allow any outside evidence or any outside explanations 435 00:50:31,800 --> 00:50:39,320 to be admitted. So when as a mediator you ought to advise the parties or suggest to 436 00:50:39,320 --> 00:50:45,720 the parties that the settlement agreement be as complete as possible because if there 437 00:50:45,720 --> 00:50:53,320 is litigation over it, only the settlement agreement will be admissible and nothing else. 438 00:50:53,320 --> 00:50:59,680 So when does a mediation end? It ends when the case resolves in a settlement agreement, 439 00:50:59,680 --> 00:51:06,240 when the mediator or one of the parties sends a letter stating so, or 10 calendar days after 440 00:51:06,240 --> 00:51:12,160 the last communication between the mediator and the parties. And this time period can 441 00:51:12,160 --> 00:51:21,360 be shortened or extended by agreement. I often extend it for 180 days because frequently 442 00:51:21,360 --> 00:51:25,640 parties come to mediation and they realize that they need to do some more discovery. 443 00:51:25,640 --> 00:51:31,520 For example, take a deposition or request some documents and so I typically extend it 444 00:51:31,520 --> 00:51:39,360 out to allow for that. So California Evans Code 1126 basically says that what goes on 445 00:51:39,360 --> 00:51:45,440 in Vegas stays in Vegas. Anything said, any admission made during a mediation remains 446 00:51:45,440 --> 00:51:54,000 confidential to the end of time. And California Evans Code 1128 essentially says that anything 447 00:51:54,000 --> 00:52:00,760 that occurred during a mediation cannot be mentioned in a subsequent civil proceeding. 448 00:52:00,760 --> 00:52:08,040 If it is mentioned at trial, it is grounds for a new trial under section 657. If it's 449 00:52:08,040 --> 00:52:14,040 mentioned in a subsequent non-criminal proceeding such as on a motion for some re-judgment, 450 00:52:14,040 --> 00:52:20,720 then it would be grounds to vacate or modify the decision if the reference materially affected 451 00:52:20,720 --> 00:52:26,280 the substantial rights of the party requesting relief. 452 00:52:26,280 --> 00:52:33,360 Now the last Supreme Court case on the matter was decided in 2011 and it is Castle v. Superior 453 00:52:33,360 --> 00:52:42,880 Court. And here the Supreme Court upheld the policy of the statutes stating that mediation 454 00:52:42,880 --> 00:52:49,600 confidentiality will override the ability of a party to a mediation to sue their attorney 455 00:52:49,600 --> 00:52:59,360 for alleged professional negligence. And in this case, Michael Castle was sued or was 456 00:52:59,360 --> 00:53:05,440 attending a mediation in a business dispute involving Cray Martin Fringeman or counterfeiting 457 00:53:05,440 --> 00:53:11,360 under an alleged global master license. And he met with his attorneys a few days prior 458 00:53:11,360 --> 00:53:18,080 to the mediation to discuss strategy and then they attended the mediation. At the mediation, 459 00:53:18,080 --> 00:53:24,320 he was forced to settle on terms he did not like. And so afterwards he later sued his 460 00:53:24,320 --> 00:53:30,200 attorneys claiming that his counsel harassed and coerced him to settle for an amount less 461 00:53:30,200 --> 00:53:36,200 than he wanted. They threatened to abandon him at trial if he didn't settle. They misrepresented 462 00:53:36,200 --> 00:53:41,600 important terms of the proposed settlement and falsely assured him that they could make 463 00:53:41,600 --> 00:53:47,600 up the difference or the amount that he wasn't getting by a side agreement. They also said 464 00:53:47,600 --> 00:53:53,160 they would discount the bill and they failed to disclose a conflict of interest. So he 465 00:53:53,160 --> 00:53:59,280 sues. The attorneys filed a motion to dismiss saying everything was covered by mediation 466 00:53:59,280 --> 00:54:05,840 confidentiality, including both what went on in the strategy session before the mediation 467 00:54:05,840 --> 00:54:11,720 and during the mediation. The trial court agreed. The appellate court split the baby 468 00:54:11,720 --> 00:54:19,400 stating that the pre pre mediation of strategy sessions were not covered by mediation confidentiality, 469 00:54:19,400 --> 00:54:25,760 but the actual mediation was the Supreme Court agreed with the trial court, essentially saying 470 00:54:25,760 --> 00:54:32,800 that everything was covered. And it stated we must apply the plain terms of the mediation 471 00:54:32,800 --> 00:54:38,800 confidentiality statute to the facts unless such result would violate due process or would 472 00:54:38,800 --> 00:54:45,240 lead to an absurd result never intended by the legislature. And when you talk about mediation 473 00:54:45,240 --> 00:54:51,800 confidentiality, not only you're talking about what went on between plaintiff and defendant, 474 00:54:51,800 --> 00:54:58,760 but even that which may occur between defendants, for example, or between an attorney and a client. 475 00:54:58,760 --> 00:55:05,240 If during a mediation, the attorney decides to change the fee agreement in order to make 476 00:55:05,240 --> 00:55:10,680 the settlement work, that will be the that change in agreement will be covered by mediation 477 00:55:10,680 --> 00:55:18,760 confidentiality so that if the attorney later renegs and it is not in writing with the language 478 00:55:18,760 --> 00:55:25,960 of evidence code 1123 included, then the client has no way to enforce it in court. Or if you 479 00:55:25,960 --> 00:55:32,040 have several defendants and they have agreed to a certain proportion of liability amongst 480 00:55:32,040 --> 00:55:38,360 themselves, that agreement also must be in writing with the language of evidence code 481 00:55:38,360 --> 00:55:51,320 1123 in it to later be admissible and enforceable. So as a result of Castle versus Superior Court, 482 00:55:51,320 --> 00:56:03,720 the Beverly Hills Bar Association came up with a proposed suggestion to create a exception 483 00:56:03,720 --> 00:56:09,760 to mediation confidentiality for attorney malpractice. And it was subsequently submitted 484 00:56:09,760 --> 00:56:17,080 to the legislature who then submitted it to the California Law Revision Committee who 485 00:56:17,080 --> 00:56:24,560 studied the matter came up with a provision. But the proposal of the California Law Revision 486 00:56:24,560 --> 00:56:33,400 Commission met with a lot of opposition so it went nowhere. And so instead, a group of 487 00:56:33,400 --> 00:56:42,560 folks got together and drafted what is known as evidence code 1129. 1129 creates a prior 488 00:56:42,560 --> 00:56:49,480 disclosure or informed consent requirement whereas the proposed legislation was trying 489 00:56:49,480 --> 00:56:56,800 to create an exception to mediation confidentiality or an after the fact type of arrangement. And 490 00:56:56,800 --> 00:57:04,280 evidence code 1129, as I said, is a prior disclosure informed consent that simply provides 491 00:57:04,280 --> 00:57:10,240 that an attorney who represents a client participating in mediation shall as soon as 492 00:57:10,240 --> 00:57:17,120 reasonably possible before the client agrees to mediate, provide them with a printed disclosure 493 00:57:17,120 --> 00:57:24,040 containing the confidentiality restrictions that we have been discussing. And if the attorney 494 00:57:24,040 --> 00:57:31,400 is retained after an individual agrees to participate in the mediation, then again, as 495 00:57:31,400 --> 00:57:38,680 recently as soon as recently possible, provide them with the printed disclosure and acknowledgement 496 00:57:38,680 --> 00:57:45,200 that discussing the evidence code sections that we've gone over, the printed disclosure 497 00:57:45,200 --> 00:57:51,120 should be in 12-point font. It should all be printed on a single page, including the 498 00:57:51,120 --> 00:58:00,560 signature lines for the client and the attorney. And if the parties use the sample form and 499 00:58:00,560 --> 00:58:06,360 the statute, then they will have deemed to have complied. And the sample form starts 500 00:58:06,360 --> 00:58:14,880 off with a little introductory paragraph that is shown here. And then it provides specifically 501 00:58:14,880 --> 00:58:20,840 that all communications, negotiations, or settlement offers must remain confidential, 502 00:58:20,840 --> 00:58:30,000 which is in essence evidence code section 1119C. It then quotes 1119A and B. And it provides 503 00:58:30,000 --> 00:58:38,080 that a mediator's report cannot be submitted, which is evidence code 1121. And it provides 504 00:58:38,080 --> 00:58:44,280 that a mediator cannot testify pursuant to evidence code 703.5, which I will get to in 505 00:58:44,280 --> 00:58:51,040 a moment. And basically, the last paragraph is a summary of evidence code sections 1115 506 00:58:51,040 --> 00:58:59,480 to 1129. And what this means is that a party or an attorney should give this to the client 507 00:58:59,480 --> 00:59:05,680 prior to the mediation so that the client is aware that mediation confidentiality will 508 00:59:05,680 --> 00:59:13,960 apply and that there will be limitations on any possible redress that the client may have 509 00:59:13,960 --> 00:59:20,000 if the mediation does not go to the client's liking. And so then you have the signature 510 00:59:20,000 --> 00:59:27,800 block. And then note, subpart E provides that the failure of an attorney to comply with 511 00:59:27,800 --> 00:59:34,600 this section is not a basis to set aside the agreement prepared in the course of or pursuant 512 00:59:34,600 --> 00:59:43,080 to a mediation. What the only thing if an attorney does not comply with this, the only 513 00:59:43,080 --> 00:59:49,440 thing that the client really can do is follow a complaint with the state bar about the attorney's 514 00:59:49,440 --> 00:59:55,640 failure to comply with this section. Now, evidence code section 703.5 provides that 515 00:59:55,640 --> 01:00:03,480 a mediator is not competent or is not qualified to testify in any subsequent civil proceeding 516 01:00:03,480 --> 01:00:11,160 except in a civil or criminal contempt proceeding or about conduct constituting a crime, conduct 517 01:00:11,160 --> 01:00:16,440 being investigated by either the state bar or the commission on judicial performance or 518 01:00:16,440 --> 01:00:24,680 in a disqualification proceeding or in certainly family law proceedings. Mediator immunity 519 01:00:24,680 --> 01:00:33,360 there is quasi judicial mediator immunity. The case is Howard versus Drapegan in 1990. 520 01:00:33,360 --> 01:00:41,360 And what this was was this was a family law matter in which regarding custody and visitation 521 01:00:41,360 --> 01:00:48,520 rights over the minor son of the plaintiff and her former husband Robert, Mrs. Howard 522 01:00:48,520 --> 01:00:59,440 sued the mediator Drapegan because she alleges that during the mediation, the meat in a single 523 01:00:59,440 --> 01:01:08,080 six hour session between the plaintiff and the defendant, the mediator acted negligently 524 01:01:08,080 --> 01:01:14,520 and that the mediator prepared a report that included false statements and omitted crucial 525 01:01:14,520 --> 01:01:20,680 information. They failed that she failed to disclose certain conflicts of interest and 526 01:01:20,680 --> 01:01:27,480 her lack of expertise and child abuse matters. And she alleges that the defendant Ms. Drapegan 527 01:01:27,480 --> 01:01:34,280 was also abusive. And the appellate court said no, we are providing quasi judicial 528 01:01:34,280 --> 01:01:40,520 immunity to the mediator. She cannot be sued for professional negligence that occurred 529 01:01:40,520 --> 01:01:46,480 during the mediation. Now finally, the last thing I want to go through are the possible 530 01:01:46,480 --> 01:01:55,320 exceptions to mediation confidentiality. As I mentioned under the mandated reporter statute. 531 01:01:55,320 --> 01:02:01,560 If you are a mandated reporter, you may have to report child or elder abuse. There is a 532 01:02:01,560 --> 01:02:08,400 case called Terrace off versus Regents Board of University of California. It's a 1976 533 01:02:08,400 --> 01:02:14,040 California Supreme Court case. And it held that a psychotherapist who failed to warn third 534 01:02:14,040 --> 01:02:22,360 parties that a patient threatened serious bodily harm, um, committed an error. And the 535 01:02:22,360 --> 01:02:28,160 issue here is whether this should extend to mediators. If we hear of a threat of serious 536 01:02:28,160 --> 01:02:34,360 bodily harm or criminal conduct on the mediator, or during a mediation under this case, do 537 01:02:34,360 --> 01:02:41,200 we have a duty to report it, um, called a to testify as a witness that relates to the 538 01:02:41,200 --> 01:02:47,240 evidence code 703.5 that I just mentioned. In certain instances, we may be called, for 539 01:02:47,240 --> 01:02:55,080 example, before a state bar proceeding or before the, uh, council on judicial performance 540 01:02:55,080 --> 01:03:01,880 reports to courts. Our reports are limited, as I've mentioned, but also close to the connected 541 01:03:01,880 --> 01:03:08,880 is that, uh, most mediator panels, and this includes both the superior court and the U.S. 542 01:03:08,880 --> 01:03:16,400 district court, allow the mediator to discuss with the administrator issues that may arise 543 01:03:16,400 --> 01:03:22,240 during a mediation. Uh, those discussions will be covered by mediation confidentiality 544 01:03:22,240 --> 01:03:29,240 to help the mediator gain insight, uh, regarding what to do about a particular matter. Um, 545 01:03:29,240 --> 01:03:35,560 disclosure regarding contesting a settlement, this relates, uh, back to evidence code section 546 01:03:35,560 --> 01:03:44,560 1123 and also the motion to enforce settlement under 664.6 of the code of civil procedure. 547 01:03:44,560 --> 01:03:51,080 Um, disclosure regarding the possible misconduct of an attorney or mediator as a many, as I 548 01:03:51,080 --> 01:03:58,400 mentioned, many of the court connected programs have a quality control aspect to them so that 549 01:03:58,400 --> 01:04:05,320 if a mediator acted incompetently or didn't, or acted, you know, as they otherwise should 550 01:04:05,320 --> 01:04:13,520 have a complaint can be made, uh, to the ADR administrator who will conduct an investigation 551 01:04:13,520 --> 01:04:19,720 into that misconduct. And again, regarding the misconduct of an attorney, uh, possible 552 01:04:19,720 --> 01:04:26,320 state bar proceedings, um, mediation fee dispute. If you, as a mediator, you find you're suing 553 01:04:26,320 --> 01:04:33,760 for your fees, you do have to be careful, uh, about what is disclosed to the court. Um, 554 01:04:33,760 --> 01:04:39,280 what's can override the aspect of confidentiality. They can simply ignore it and saying, I don't 555 01:04:39,280 --> 01:04:45,120 care that it's confidential. Tell me about it. Anyway, um, there was a study done by 556 01:04:45,120 --> 01:04:52,460 James Coben and Peter Thompson, uh, who studied over 1200 state and federal cases dealing 557 01:04:52,460 --> 01:05:01,480 with mediation between 1999 and 2003 and found that 152 cases considered confident, considered 558 01:05:01,480 --> 01:05:07,840 the confidentiality claim. It was upheld 50% of the time. Those who rejected it did so 559 01:05:07,840 --> 01:05:14,280 without much reasoning, but more importantly, the study found that there were over 300 opinions 560 01:05:14,280 --> 01:05:20,000 in which what happened during a mediation was the issue, but confidentiality was not 561 01:05:20,000 --> 01:05:26,640 even raised in 45 of those opinions. It was the mediator who was testifying and 65 of 562 01:05:26,640 --> 01:05:32,760 those opinions. Others were offering evidence of what the mediator said or did. And then 563 01:05:32,760 --> 01:05:39,240 in over 260 of them, the attorneys were offering evidence as to their own statements or conduct 564 01:05:39,240 --> 01:05:45,120 during mediation. And then the last is that there may be conflicting state laws. For example, 565 01:05:45,120 --> 01:05:51,880 if you have, particularly in the age of zoom, if you are mediating across state lines, um, 566 01:05:51,880 --> 01:05:59,680 one state may have different rules on confidentiality than the next and may not honor your confidentiality 567 01:05:59,680 --> 01:06:06,360 agreement because it does not apply to their state laws. So even though California does 568 01:06:06,360 --> 01:06:13,760 say that, uh, mediation confidentiality is almost absolute and will be enforced, uh, 569 01:06:13,760 --> 01:06:21,200 unless there's a clear abuse, abuse of due process or produces a result that the legislature 570 01:06:21,200 --> 01:06:29,200 never intended, um, you do have to consider these possible exceptions to mediation confidentiality. 571 01:06:29,200 --> 01:06:35,240 So that is it. I thank you very much. If you have any questions, please feel free to either 572 01:06:35,240 --> 01:06:42,440 give me a call, uh, on my office number or my mobile number, uh, or to send me an email. 573 01:06:42,440 --> 01:06:48,440 And so I thank you very much, uh, for your time. You may be eligible for CLE credit in 574 01:06:48,440 --> 01:07:13,200 your state. Visit bhba.org slash podcasts for more information.