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today.
Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Phyllis
Pollack of PGP Mediation, will guide you through essential ethics of mediation. Let's dive
in.
My name is Phyllis Pollack, and as part of the Beverly Hills training, our training program,
I'd like to just spend about the next 60 minutes talking about the essential ethics of mediation.
So to begin, let's first look at an outline, and what we will discuss this morning or today
will be first, I will go over a definition of ethics. I will then discuss the model standards
of conduct for mediators that was revised in 2005. I will then talk about the California
statutes on mediation confidentiality, the California case law on mediation confidentiality,
evidence code section 1129 that became effective in 2019, evidence code 703.5, which talks about
the competency of mediators, or actually the lack of competency of mediators to testify,
and then quasi-judicial immunity, and then finally the exceptions to mediation confidentiality.
So let us begin.
So the first question we have is ethics. How would you define ethics? And one definition
of ethics is that ethics is broadly applied social standards to determine the right and
wrong in any given situation or means or a way to determine it. It is a way that we can
all get together and get along together in the world without chaos. It Aristotle defined
it the same way as a means of outlining or establishing each person's obligation or duties
to each other, to themselves, and to society as a whole. Now, while ethics involves society
as a whole, morals are individual and personal beliefs as to what is right and wrong. And
so that is the difference between morals and ethics. So in order to make an ethical decision,
we need three things. We need transparency, which is the open sharing of important information.
We need informed consent, which is agreeing to an action based on understanding of the
action and its consequences. And finally, we need effective listening, which is grasping
the speaker's meaning. As you will see, there are no clear-cut answers. Ethics is not always
black and white. Why is it important? It is important to build trust, to build relationships,
to create fairness, and to create transparency. So let's talk about the model standards of
conduct for mediators. They were originally enacted in 1994 and authored by the American
Bar Association section of dispute resolution, the American Arbitration Association, and
the Association for Conflict Resolution. They were revised in 2005. And when you're talking
about the model standards, we're talking about three essential values, which I will get to
in a minute. But what I would like to emphasize is that no one standard is absolute. No one
standard has priority over the other, and no one standard overrides another. These standards
are all aspirational. They are not rules of law or anything of that sort. What you have
to do is look at the California statutes, the rules, and the regulations to see what
they say. So as I mentioned, there are three essential values. And they are self-dispute
and autonomy, which involves self-determination, a party's right to make choices based on one's
personal beliefs and values, free of coercion and constraint. And it involves informed consent,
which is a very important concept that I will get to in a moment. Then it also involves
procedural fairness, which is the fairness of the process to reach the mediated result.
And the standards involved with procedural fairness include impartiality, conflict of
interest, confidentiality, quality of process. The last value is substantial fairness. That
is whether the outcome is good enough, whether the mediated result is acceptable. Now, some
mediators believe that substantive fairness is of no concern to them, whereas other mediators
do believe that they should be concerned about whether the result is substantially fair.
I will leave it to you and your own moral compass to decide whether you think substantive
fairness is an important value to you or not. So let's look at the first standard. The first
standard is self-determination. And it states that self-determination is the act of coming
to a voluntary, unquestioned decision in which each party makes free and informed choices
as to process an outcome. Now, I've highlighted informed because that is a loaded word. And
if you look at the California Rules of Professional Conduct, Rule 1.0.1.0.1.0e, it defines informed
consent as a person's agreement to a proposed course of conduct after the lawyer has communicated
and explained the relevant circumstances, including the material risks and any actual
and reasonably foreseeable adverse consequences to the proposed course of conduct. A more
simple definition is found in Black's Law Dictionary, which means simply a person's
agreement to allow something to happen made with full knowledge of the risks involved
and the alternatives. So when you go back to the definition of self-determination, it
is saying that it is the act of a party to reach a voluntary, unquestioned decision after
the party makes a free and informed, that is, knows all of the benefits and risks and
the possible adverse consequences of the decision that they are about to make. So let's go to
the second part. So while we have self-determination, the standard then goes on to say that a mediator
may need to balance such party self-determination with the mediator's duty to conduct a quality
of process. And what this means is that while the party may have self-determination, the
mediator may override it in the name of quality of process and make decisions separate and
apart from that, which a party may want. For example, the mediator may decide to hold a
caucus whereas the parties want a joint session or the mediator may decide to have a joint
session or a session with attorneys only even though the parties disagree. The mediator
may decide to not have a caucus confidential whereas the parties may want it as such or
the mediator may decide to terminate a mediation against the parties' desires or even to keep
going against the parties' desires. But then we go to A.2 of this standard that while self-determination
is key here, it then goes on to say that a mediator cannot personally ensure that each
party has made free and informed choices to reach a particular decision. And so simply
should refer them or make them aware of consulting other professionals to help them make that
informed choice. So as you can sort of sense this first standard is inconsistent or there's
tension in it and that while the first part says that self-determination is all important,
the second part says a mediator can override it and the third part says that a mediator
cannot even ensure the self-determination. Now or that a party has made a free and informed
choice. And when we're talking about self-determination, you have to think in terms of that it can
involve either internal threats or external threats. And by internal threats, I'm talking
about physical or mental conditions such as a mental capacity or mental competency. And
by external threats, I'm talking about situational ones such as coercion, duress, ignorance of
the law, ignorance of one's rights or even time limitations. For example, somebody has
a plane to catch by two o'clock and so the time for mediation is limited. Also, you have
to think about how much information is sufficient for a party to make a self-determining decision.
That is, some parties may want to know every bit and every scrap of information there is
before making the decision, whereas other parties may not want to know anything. They
just want to be done with it. They want out of there very quickly, sign on the dotted
line and let's go and they do not want to know anything. So you have to think in terms
of each party's own definition of self-determination. So let's go on to the next standard. And this
is impartiality and this is part of procedural fairness. And when we talk about procedural
fairness, we're talking about the mediator staying out of the substantive side of the
dispute and is simply instituting a procedure that encourages fair play and that treats
the disputants with dignity and with respect. So when we talk about impartiality, we're
talking the standard provides that a mediator shall decline a mediation if the mediator
cannot conduct it in an impartial manner. And impartiality means freedom from favoritism,
bias, or prejudice. And that a mediator shall not act with partiality or prejudice based
on any party's personal characteristics, background, values, beliefs, or performance
at a mediation or any other reason. Now, you ask, okay, is it okay for me to give information
or advice to one party and not to the other? Many mediators will say yes. Other mediators
will think perhaps you're being partial by doing that. Now, when we talk about impartiality,
we have to distinguish that term from neutrality. Impartiality is defined as having no favorites
that is during the process of the mediation, the mediator treats each party in the exact
same way, takes no sides, regardless of their personal characteristics. Whereas the term
neutrality means simply that the mediator does not interfere with the substance of the
dispute. The mediator remains indifferent to the result and well-being of the parties
and is disinterested in the result. Obviously, the mediator would like to see the case settled,
but is not concerned with the particular terms. So in essence, impartiality is defined by
the mediators' behavior and action during the mediation, while neutrality is defined
by the mediators' lack of interest and the outcome of the dispute. And as I said, more
specifically the actual terms of any potential settlement.
So let's go to conflict of interest. But before I do, I also want to mention one more point
about impartiality. We all have biases. We all have implicit biases. We all have explicit
biases. The trick with impartiality is to avoid explicit favoritism and bias in word
and in action. That is, while we may have our own biases, we cannot show them. We cannot
externally manifest those prejudices, biases, or favoritisms, in other words, we have to
separate our feelings and views from our conduct and keep our biases, our prejudices, to ourselves
and treat everyone equally and impartially. So on to conflicts of interest. A mediator
shall avoid a conflict of interest or the appearance during and after a mediation. This
is going to be a reasonable person standard. And it can arise due to the subject matter
of the dispute or from past, present, personal, professional relationships between the mediator
and any participant that reasonably raises the question of whether the mediator is impartial.
And as I said, context matters. One must make a reasonable inquiry into the facts. So for
example, if I meet what turns out to be a party to my mediation at the Grace Restore
and talk for five minutes, that doesn't create a conflict of interest. But for example, if
one of the parties is one that I've been having lunch with every week for the last year, that
could conceivably create a conflict of interest. So conflict, so the context is critical and
inquiry must be made into the context. And as I said, it is a reasonable person standard.
And if there is a conflict, you must disclose it as soon as practical, whether it's an actual
or potential conflict. And the conflict can arise even after you've accepted the mediation.
And you must disclose it. It is a two step process. If you disclose the conflict, and
the parties agree to waive it, you then must ask yourself if the conflict might be reasonably
viewed as undermining the integrity of the mediation. And if so, you as the mediator
should withdraw even though the parties are agreeing to waive it and do not feel that
it is conflict. And then even after the mediation, you have to be careful about establishing relationships
with any of the parties because it may raise a question in terms of the integrity of the
mediation. For example, whether your actions will infect a quid pro quo, whether you've
got some type of reward or additional income or recompense for the way you acted at the
mediation. So even after the mediation is over, you have to be careful about your relationships
with the parties. The next is competence. And obviously, a mediator has to be competent
and has to have the competence that is necessary to satisfy the reasonable expectations of
the parties. I've highlighted reasonable expectations because if you think about it, you would have
to really cross examine the parties to figure out what the reasonable expectations are.
So I'm not quite sure how realistic this term is. Now, obviously, your competency will be
based upon training, experience and mediation skills and cultural understandings. And I
do highlight cultural understandings because I think as you're aware, County of LA or Los
Angeles area, Southern California is quite diverse when it comes to cultural backgrounds.
I believe that the Los Angeles Superior Court has interpreted and interpreter services for
more than 140 languages. So you have to be culturally sensitive when you mediate. If
you take on a mediation and at a certain point during the mediation, you feel that you're
not competent, you have a duty to advise the parties immediately, discuss it with them.
And if necessary, request appropriate assistance or to withdraw from the mediation altogether.
And obviously, if you are impaired by drugs, by prescription medicine, by alcohol or whatnot,
you should not be mediating. You should simply postpone, terminate or withdraw from the mediation.
Now confidentiality is something that I will get into in more particular, more particularly
in a few minutes. But I just want to mention the standard that obviously a mediator shall
maintain the confidentiality of all information obtained by the mediator in mediation unless
otherwise agreed to by the parties or required by applicable law. Now California does have
a mandated reporter statute, which is contained in penal code section 11165.7. And this section
lists over 43 different types of mandated reporters. Lawyers per se are not mandated
reporters. Mandated, if you look at the statute, mandated reporters typically involve those
in the educational field and in the medical field and elsewhere. For example, a emergency
medical technician, a physician, a surgeon, a marriage and family therapist trainee, a
coroner, a medical examiner, a social worker, a district attorney investigator, a peace officer
are part or one of the over 43 different categories listed as mandated reporters. And if you are
by chance a mandated reporter, that duty will override the mediation confidentiality. In
other words, just because you are mediating does not mean that you take off your mandated
reporter hat. It is still there. And you are obligated to tell the parties that you are
a mandated reporter so that if something comes up regarding elder abuse, elder neglect, child
abandonment, child neglect, that you may be obligated to report it to the authorities.
All right. So the next standard is quality of process. And this, I think, is a very important
standard. And it provides that a mediator shall conduct a mediation in a manner that
promotes diligence, timeliness, safety, presence of the appropriate parties, party participation,
procedural fairness, and party competency. And A4 is important because it says a mediator
shall promote honesty and candor among, between the parties. And a mediator shall not knowingly
misrepresent any material fact or circumstance in the course of a mediation. Now, some take
this to mean a positive or a conscious misrepresentation, whereas others say no, mediation by silence
or omission will be important as well. I take A4 to mean that you cannot misrepresent
either by omission or by commission any material fact or circumstance in the course of mediation.
Now, there are certain circumstances where there is a duty to affirmatively speak. For
example, where silence would lead the other party in the dark about important information
relating to the transaction and that other party does not have access to that vital information,
where customs of the trade or other objective circumstances would lead a reasonable expectation
to disclose, where there is a fiduciary or confidential relationship existing, where
there may be a special statutory obligation, such as with insurance contracts, or where
a party makes a partial disclosure that is misleading, or to update and correct previously
disclosed information. These are circumstances where a, where silence is a no-no, because
there is a duty to affirmatively speak. A5 is also important. I've highlighted the sentence,
a mediator may provide information that the mediator is qualified by training or experience
to provide, only if the mediator can do so consistent with these standards. That means
that as a mediator, you can provide information if you're qualified to do so. Now, there is
a difference between information and advice. Information is simply providing the statute,
for example, in a landlord-tenant matter. You simply tell the people what the statutes
are regarding landlord-tenant law. Advice is when you go on and apply that statute or
that information to the matter at hand. And this will become very tricky if you are mediating
with self-represented parties, because obviously they may not know the law. So you simply may
want, you may feel inclined to explain to them what the statute says or what the law
says. But invariably, their next question will be something to the effect of, well,
how does that apply to me and to my case? At that point, you are giving advice and you
are taking on the role of being an attorney as opposed to maintaining your neutrality
and impartiality as a mediator. So when I teach this Mediation Ethics, I always tell
my students that it's a very slippery slope between providing information and giving advice,
and you really have to be careful in doing so. The next subpart is also important, and
it says that a mediator shall not undertake an additional dispute resolution role in the
same matter without the consent of the parties. And before providing such service, the mediator
shall inform the parties of the implication of the change in process and obtain their
consent to the change. Now, where this may come up is either doing a mediation slash
arbitration or arbitration slash mediation. In a MedARB, you may start out as a mediator,
and if the parties can't reach an agreement, you then become the arbitrator, and this is
where A8 would fit in, or vice versa, you start out as an arbitrator, but you withhold
your decision, and you withhold your decision and then allow the parties to try to mediate
to resolve it after they know all the facts. The next standard is also important. If a mediation
is being used to further criminal conduct, the mediator should take appropriate steps,
including postponing, withdrawing, or terminating. Note that I've underlined the word should
or I've highlighted it, which means you should do it, but you don't necessarily have to.
If you read the model standards of conduct, you'll notice that in some places they use
the word shall, which as we know is mandatory, and other places they use the word should,
which is permissive. And also note that this subpart says that the mediation is being used
to further criminal conduct. So if the criminal conduct has already occurred, then this section
may not apply. It's only when the mediation itself is being used as a criminal device.
And then number 10 says that if a party has difficulty comprehending the process, issues,
or settlement options, the mediator can make accommodations so that the party does have
the capacity to comprehend, participate, and exercise self-determination. So this is all
well and fine, but if you think back to the standard on impartiality, my question to you
is that if a mediator does make accommodations so that one party can understand what's going
on, is the mediator then being partial, contrary to the standard on impartiality? As I said
before, if you look at these standards, you will see that there is a lot of tension or
inconsistency among them, and you may find at times that you feel that you're getting
twisted up like a pretzel in order to abide by all of them at the same time. Another standard,
which I don't have listed here, and this goes back to the mandated reporter statute is subpart
B, and it provides that if a mediator is made aware of domestic abuse or violence among
the parties, the mediator shall take appropriate action, which includes postponing, withdrawing,
or terminating. And again, if you are a mandated reporter, you may have to take the additional
step of reporting it to the appropriate authority. Now, subpart C, which is on the slide, provides
that if a mediator believes that the conduct of a party jeopardizes conducting the mediation
consistent with the standards, the mediator shall take the appropriate steps of postponing,
withdrawing, or terminating. Typically, the only thing that you can do under these model
standards of conduct when you feel that one of them is being violated is to postpone,
withdraw, or terminate. Typically, you cannot notify any authority that is beyond the realm
of these standards or the realm of what is permissible under these standards.
So since we are, I'm dealing or talking with attorneys, I will get into a couple rules.
But first, I want to talk about substantive fairness. As I said, some mediators believe
it is important, others believe it is not. So I will raise the question to you. Do you
think you ought to be concerned about the fairness of the result? And how would you
define fair? Would you define it based upon your own belief system, based upon laws or
regulations or legal rules, or on your own approach to ethics? But now, let's go look
at some California rules of professional conduct since you are attorneys. Rule 1.12,
provides that a lawyer shall not represent anyone in connection with a matter in which
they participated as a mediator without the informed consent, written consent of all the
parties. If they do not have that informed written consent under the ABA model standard,
then the lawyer would have to be screened from participating in the matter. The lawyer
would not be able to receive any part of the fee and must give written notice of the fact
promptly to all the parties. However, that is the model ABA rule. California inserted
what I've highlighted as C1, that the prohibition does not arise from the lawyer's service
as a mediator. And what this means is simply put that if you acted as a mediator in a matter,
you cannot later represent the parties. And the reason that, and if you look at the executive
summary to this rule, you will see that it notes that the provision excludes from the
availability of screening lawyers who previously served as mediators or settlement judges.
The change was made because permitting screening of settlement judges and mediators who not
only received confidential information from the parties but actively seek such information
would reduce confidence in the administration of justice. The executive summary cites a
case, CHO, CHO versus Superior Court 39, Cal App 4, 113 at page 125. It's a 1995 case
that held that no amount of screening of a settlement judge who had received confidential
information could assuage the concerns of the parties to the settlement discussions.
So whereas in other states, a lawyer who acted as mediator may potentially later represent
the parties in California because we've inserted this C1, it is an absolute no, no, and cannot
be done. Now the next rule of interest is rule 2.5, which is lawyer as a third party neutral.
A lawyer serving as a third party neutral shall inform the unrepresented parties that
the lawyer is not representing them. And the lawyer must take pains or take great pains
to make sure that the self-represented party understands the difference between the lawyer
as an advocate or representing a party and the lawyer as a third party neutral who is
acting impartially and has no favorites. And one of my colleagues actually may have self-represented
parties sign an acknowledgement form acknowledging the difference and the fact that the lawyer
is not there to represent them. So let's go on to confidentiality. And when we talk about
confidentiality, we are talking about the ultimate self-determination because a party
has the absolute right to decide what information remains private and what information to share
and not share. And so disclosure is strictly voluntary, which in essence is self-determination.
And when we talk about self-determination, let me go back, when we talk about self-determination,
we're talking about something that is intended to be kept secret. The notion of confidentiality
refers to a voluntary agreement among parties to keep information secret. When you say something
is privileged, you're simply referring to the protection of information from compelled
disclosure. That is, you're talking about the ability of third parties to compel disclosure
when it is limited. So confidentiality is merely a voluntary agreement among parties
to keep something secret. So let's look at the history of confidentiality in California.
In 1965, evidence code section 1152 was enacted. In 1980s, it was replaced by the confidentiality
referring to mediation section 1152.5. Then section 703.5, which relates to the incompetency
of a mediator to testify, except in certain instances, was enacted in 1993. And then our
present evidence code sections 1115 to 1128 were enacted in 1997. And then 1129 of the
evidence code was enacted in 2019. So let's look at the model standard more specifically,
standard five. A mediator shall maintain the confidentiality of all information obtained
by the mediator during mediation unless otherwise agreed to, or as required by applicable law.
And I refer to the mandated reporter statute. And required by applicable law is important
as I've noted. And if the parties to a mediation agree that the mediator may disclose the information,
then the mediator may do so. A mediator shall not communicate to any non-party what went
on during the mediation. As you look at the California Rules of Court and also the U.S.
District Court rules, you'll note that the only thing that a mediator can report is whether
the parties appeared at the mediation, the mediation went forward, and whether the parties
settled or didn't settle. You cannot go into the details of what occurred at the mediation,
why it didn't settle, what the impasse was, or whatever. If the mediator, okay, if the
mediator participates in teaching, research, or evaluation, the mediator has to protect
the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.
And when you meet with a party in caucus, for example, if you meet with party A in caucus,
what goes on in that caucus, you must keep to yourself and cannot convey to the parties
to party B in another caucus unless party A says it's okay to tell party B. So in other
words, what goes on in caucus stays in caucus and you cannot share it among the caucuses.
And you have to promote an understanding among the parties to the extent that there will
be confidentiality and the parties can make up their own rules regarding confidentiality
or use your own rules or accepted practices of what will be confidential and what will
not be confidential. So why do we have confidentiality? Three main reasons. Trust in the mediator
and in the process to strengthen the concept of mediator impartiality to preserve the integrity
of the process or to sum up to maintain trust, encourage forthright disclosure, and to preserve
the party's faith in the process. That is why confidentiality is urged as being invalid.
Now, there are additional reasons to promote candor, to promote fairness, mediator neutrality
for privacy reasons, obviously, to protect the mediator. The mediator does not want to
be forced to testify, does not want to be involved in any legal actions or be harassed
in any way. Candid discussion during mediation often leads to successful mediations and successful
mediations will encourage their future use and it will help the court because it will
often or limited their caseload and help them resolve litigation more expeditiously.
So there are three levels of confidentiality. The entire mediation itself is confidential.
What goes on in each caucus is confidential and what you can't tell the judge or court
or others. So in other words, if a case does not settle and the parties have to report
to a for a post mediation status conference, the only thing they can tell the court is
that the parties appeared for mediation and that it settled or it did not settle and that
is it. So when you talk about mediation confidentiality, you're talking about two areas. One is evidence.
It has it's a rule of admissibility in California. Our evidence code provides that it is neither
admissible or discoverable. Other states may deem it to be a privilege, which about which
amounts to the same thing. But it's also involved in mediation ethics and that a mediator is
constrained from revealing information to the other side or outside of the mediation in
terms of what occurred, which means that you cannot post anything on social media. If you
go to a party, you cannot start discussing what happened at mediation. You as a mediator,
you are constrained from disclosing or revealing information to anyone about what occurred
during the mediation. So let's look at the California Evans Code Statutes. They are
sections 1115 to 1129. And 1115 sets out the definitions. It sets out the definition of
mediation as being a facilitated negotiation. It is a process by which a third party helps
other parties assist them in reaching a mutually acceptable agreement. Now, be careful when
you look at the definition of mediator, because it not only includes the mediator himself
or herself, but it also includes any person designated by the mediator to assist in the
mediation or to communicate with the parties to prepare for a mediation. In other words,
mediator includes your case manager or your assistant who is setting up, who is helping
you set up the mediation. And this becomes important when you look at mediation consultation,
because that means any communication between a person and a mediator for the purpose of
initiating, considering, or reconvening a mediation or retaining the mediator. And what
this means is that when somebody calls and talks to your case manager or assistant about
setting up a mediation or initiating it, that is a mediation consultation. And because your
case manager is defined as a mediator, all of everything that is said in that conversation
will be covered by mediation confidentiality. So mediation confidentiality attaches the moment
that somebody talks to your assistant about setting up a mediation with you or whether
it is even feasible, because if you look at the definition in 1119A and B, it provides
that no evidence of anything said or any admission of any writing or oral communication made
for the purpose of and the course of or pursuant to a mediation or mediation consultation is
admissible or subject to discovery and disclosure cannot be compelled in any non-criminal proceeding.
That is in any arbitration and any administrative agitation or any civil action. So as I said,
the moment that somebody talks to your case manager, that is a mediation consultation
and is deemed covered by mediation confidentiality. Part C is a little bit broader and it provides
that all communications, negotiations or settlement discussions by and between the parties in
the course of a mediation or mediation consultation shall remain confidential. And this does include
conduct that is intended as an assertion. So if you walk into a caucus and you ask a question
and somebody either shakes their head or nods their head or raises their thumb or gives
you a high five, some sort of assertive conduct that will be covered by mediation confidentiality.
So California evidence code 1120 essentially says that evidence that would otherwise be
admissible or subject to disclosure as part of discovery does not suddenly become inadmissible
because it was used during a mediation. So for example, if during a mediation you have
the parties using answers to interrogatories or shows you a video or a document that was
produced in the normal course of discovery, it does not all of a sudden get covered by
mediation confidentiality. It will still be admissible or otherwise discoverable. And
in contrast, evidence that is created or produced solely for use and mediation will be covered
by mediation confidentiality. There is a case called Roe Haas versus Superior Court, 15
Cal Reporter 643 or 33 Cal 4407 decided by the Supreme Court in 2004. And what happened
was the owner of an apartment building sued the general contractor for mold and toxic fumes
in the apartment building. And as part of the mediation, they hired experts to look at
the toxic mold and other stuff and to make reports. That matter settled. The tenants
then sued the landlord and they wanted those expert reports. And the Supreme Court said,
no, they are not available because the experts provided those reports on the mold and other
toxic materials solely and only as part of the mediation. So they are not discoverable.
Now evidence code section 1120 goes on to say that the chapter does not limit the admissibility
of an agreement to mediate a dispute, the effect of an agreement not to take a default
or an agreement to extend the time within which to act or refrain from acting and a
pending civil action or disclosing of the mere fact that a mediator served is served
will serve or was contacted about serving. And it also codifies the decision in LAP versus
the Superior Court, which held that the declarations of income and expense or the financial disclosure
statements required by the family code do not suddenly become inadmissible because they
were used as part of a mediation. And LAP versus Superior Court, the husband and wife
went to mediation in order to settle the property and support obligations as part of a divorce
and their income and expense disclosure statements were produced. The husband later sought to
have them excluded in a subsequent civil proceeding saying they were used as part of the mediation.
And ultimately the appellate court said no, and the Supreme Court denied certiorari of
the case. So the fact that a declaration of disclosure or your income financial disclosure
statement is produced as part of the family code does not and is then used in a mediation
does not suddenly cloak it with mediation confidentiality.
Now evidence code 1121 simply provides that you cannot be required to submit a report to
the court regarding involving or including an assessment and evaluation or a recommendation
of what went on at mediation. The only thing that you can submit, as I've said, is that
the parties appeared for mediation and it settled or it did not settle. And that is
it. Evidence code 1122 I have highlighted Bay 1 because it says that the only way that
a communication occurring during mediation will become admissible is if all parties who
conduct or otherwise participate in the mediation expressly agree in writing. In other words,
the consent of the mediator is also needed. And I think a lot of folks don't realize that
they need the consent of the mediator in order to waive confidentiality. Many probably think
that as long as the parties consent that is sufficient. And so I wanted to point this
out to you.
Now the next statute is extremely important. 1123 provides that the only way that a written
settlement agreement that was prepared during the mediation is is enforceable and that is
admissible and is enforceable is if the agreement provides that it is admissible or subject
to disclosure or words to that effect, or the agreement provides that it is enforceable
or binding to words of that effect, or the parties agree, or that is being used to show
fraud, duress, or illegality that is relevant to the issue and dispute. Now there was another
Supreme Court decision called Fair versus Bakari, 51 Cal Reporter 3rd, 871 or 40 Cal
Reporter 189. There the parties entered into a little one page settlement memorandum or
agreement. And the very last paragraph simply provided that if a dispute arose regarding
the documentation of the settlement, the parties agreed to arbitrate. Well as luck would have
it, they could not agree on the documentation of the settlement agreement. So plaintiff
asked the defense counsel to arbitrate. And the defendant said no, the agreement is neither
admissible or enforceable. The trial court agreed, the appellate court reversed, the
Supreme Court agreed with the trial court because the agreement did not have the magic
terms in it or what I call the magic words that it provided that it was admissible or
subject to disclosure or that it was enforceable or binding or words to that effect. The Supreme
Court held that it was neither admissible or enforceable. And so the lesson to be learned
is that in order to have a mediation settlement agreement enforceable or admissible, it must
have these magic words in it. If it does not, then literally it is not worth the paper and
the ink expended to create the agreement. Now, if it does come to pass that the parties
file a motion to enforce the settlement pursuant to code of civil procedure section 664.6,
the only thing that will be admissible is the settlement agreement itself. So the settlement
agreement must be complete, it must have the backstory in it, it must have all representations
and warranties because the court cannot allow any outside evidence or any outside explanations
to be admitted. So when as a mediator you ought to advise the parties or suggest to
the parties that the settlement agreement be as complete as possible because if there
is litigation over it, only the settlement agreement will be admissible and nothing else.
So when does a mediation end? It ends when the case resolves in a settlement agreement,
when the mediator or one of the parties sends a letter stating so, or 10 calendar days after
the last communication between the mediator and the parties. And this time period can
be shortened or extended by agreement. I often extend it for 180 days because frequently
parties come to mediation and they realize that they need to do some more discovery.
For example, take a deposition or request some documents and so I typically extend it
out to allow for that. So California Evans Code 1126 basically says that what goes on
in Vegas stays in Vegas. Anything said, any admission made during a mediation remains
confidential to the end of time. And California Evans Code 1128 essentially says that anything
that occurred during a mediation cannot be mentioned in a subsequent civil proceeding.
If it is mentioned at trial, it is grounds for a new trial under section 657. If it's
mentioned in a subsequent non-criminal proceeding such as on a motion for some re-judgment,
then it would be grounds to vacate or modify the decision if the reference materially affected
the substantial rights of the party requesting relief.
Now the last Supreme Court case on the matter was decided in 2011 and it is Castle v. Superior
Court. And here the Supreme Court upheld the policy of the statutes stating that mediation
confidentiality will override the ability of a party to a mediation to sue their attorney
for alleged professional negligence. And in this case, Michael Castle was sued or was
attending a mediation in a business dispute involving Cray Martin Fringeman or counterfeiting
under an alleged global master license. And he met with his attorneys a few days prior
to the mediation to discuss strategy and then they attended the mediation. At the mediation,
he was forced to settle on terms he did not like. And so afterwards he later sued his
attorneys claiming that his counsel harassed and coerced him to settle for an amount less
than he wanted. They threatened to abandon him at trial if he didn't settle. They misrepresented
important terms of the proposed settlement and falsely assured him that they could make
up the difference or the amount that he wasn't getting by a side agreement. They also said
they would discount the bill and they failed to disclose a conflict of interest. So he
sues. The attorneys filed a motion to dismiss saying everything was covered by mediation
confidentiality, including both what went on in the strategy session before the mediation
and during the mediation. The trial court agreed. The appellate court split the baby
stating that the pre pre mediation of strategy sessions were not covered by mediation confidentiality,
but the actual mediation was the Supreme Court agreed with the trial court, essentially saying
that everything was covered. And it stated we must apply the plain terms of the mediation
confidentiality statute to the facts unless such result would violate due process or would
lead to an absurd result never intended by the legislature. And when you talk about mediation
confidentiality, not only you're talking about what went on between plaintiff and defendant,
but even that which may occur between defendants, for example, or between an attorney and a client.
If during a mediation, the attorney decides to change the fee agreement in order to make
the settlement work, that will be the that change in agreement will be covered by mediation
confidentiality so that if the attorney later renegs and it is not in writing with the language
of evidence code 1123 included, then the client has no way to enforce it in court. Or if you
have several defendants and they have agreed to a certain proportion of liability amongst
themselves, that agreement also must be in writing with the language of evidence code
1123 in it to later be admissible and enforceable. So as a result of Castle versus Superior Court,
the Beverly Hills Bar Association came up with a proposed suggestion to create a exception
to mediation confidentiality for attorney malpractice. And it was subsequently submitted
to the legislature who then submitted it to the California Law Revision Committee who
studied the matter came up with a provision. But the proposal of the California Law Revision
Commission met with a lot of opposition so it went nowhere. And so instead, a group of
folks got together and drafted what is known as evidence code 1129. 1129 creates a prior
disclosure or informed consent requirement whereas the proposed legislation was trying
to create an exception to mediation confidentiality or an after the fact type of arrangement. And
evidence code 1129, as I said, is a prior disclosure informed consent that simply provides
that an attorney who represents a client participating in mediation shall as soon as
reasonably possible before the client agrees to mediate, provide them with a printed disclosure
containing the confidentiality restrictions that we have been discussing. And if the attorney
is retained after an individual agrees to participate in the mediation, then again, as
recently as soon as recently possible, provide them with the printed disclosure and acknowledgement
that discussing the evidence code sections that we've gone over, the printed disclosure
should be in 12-point font. It should all be printed on a single page, including the
signature lines for the client and the attorney. And if the parties use the sample form and
the statute, then they will have deemed to have complied. And the sample form starts
off with a little introductory paragraph that is shown here. And then it provides specifically
that all communications, negotiations, or settlement offers must remain confidential,
which is in essence evidence code section 1119C. It then quotes 1119A and B. And it provides
that a mediator's report cannot be submitted, which is evidence code 1121. And it provides
that a mediator cannot testify pursuant to evidence code 703.5, which I will get to in
a moment. And basically, the last paragraph is a summary of evidence code sections 1115
to 1129. And what this means is that a party or an attorney should give this to the client
prior to the mediation so that the client is aware that mediation confidentiality will
apply and that there will be limitations on any possible redress that the client may have
if the mediation does not go to the client's liking. And so then you have the signature
block. And then note, subpart E provides that the failure of an attorney to comply with
this section is not a basis to set aside the agreement prepared in the course of or pursuant
to a mediation. What the only thing if an attorney does not comply with this, the only
thing that the client really can do is follow a complaint with the state bar about the attorney's
failure to comply with this section. Now, evidence code section 703.5 provides that
a mediator is not competent or is not qualified to testify in any subsequent civil proceeding
except in a civil or criminal contempt proceeding or about conduct constituting a crime, conduct
being investigated by either the state bar or the commission on judicial performance or
in a disqualification proceeding or in certainly family law proceedings. Mediator immunity
there is quasi judicial mediator immunity. The case is Howard versus Drapegan in 1990.
And what this was was this was a family law matter in which regarding custody and visitation
rights over the minor son of the plaintiff and her former husband Robert, Mrs. Howard
sued the mediator Drapegan because she alleges that during the mediation, the meat in a single
six hour session between the plaintiff and the defendant, the mediator acted negligently
and that the mediator prepared a report that included false statements and omitted crucial
information. They failed that she failed to disclose certain conflicts of interest and
her lack of expertise and child abuse matters. And she alleges that the defendant Ms. Drapegan
was also abusive. And the appellate court said no, we are providing quasi judicial
immunity to the mediator. She cannot be sued for professional negligence that occurred
during the mediation. Now finally, the last thing I want to go through are the possible
exceptions to mediation confidentiality. As I mentioned under the mandated reporter statute.
If you are a mandated reporter, you may have to report child or elder abuse. There is a
case called Terrace off versus Regents Board of University of California. It's a 1976
California Supreme Court case. And it held that a psychotherapist who failed to warn third
parties that a patient threatened serious bodily harm, um, committed an error. And the
issue here is whether this should extend to mediators. If we hear of a threat of serious
bodily harm or criminal conduct on the mediator, or during a mediation under this case, do
we have a duty to report it, um, called a to testify as a witness that relates to the
evidence code 703.5 that I just mentioned. In certain instances, we may be called, for
example, before a state bar proceeding or before the, uh, council on judicial performance
reports to courts. Our reports are limited, as I've mentioned, but also close to the connected
is that, uh, most mediator panels, and this includes both the superior court and the U.S.
district court, allow the mediator to discuss with the administrator issues that may arise
during a mediation. Uh, those discussions will be covered by mediation confidentiality
to help the mediator gain insight, uh, regarding what to do about a particular matter. Um,
disclosure regarding contesting a settlement, this relates, uh, back to evidence code section
1123 and also the motion to enforce settlement under 664.6 of the code of civil procedure.
Um, disclosure regarding the possible misconduct of an attorney or mediator as a many, as I
mentioned, many of the court connected programs have a quality control aspect to them so that
if a mediator acted incompetently or didn't, or acted, you know, as they otherwise should
have a complaint can be made, uh, to the ADR administrator who will conduct an investigation
into that misconduct. And again, regarding the misconduct of an attorney, uh, possible
state bar proceedings, um, mediation fee dispute. If you, as a mediator, you find you're suing
for your fees, you do have to be careful, uh, about what is disclosed to the court. Um,
what's can override the aspect of confidentiality. They can simply ignore it and saying, I don't
care that it's confidential. Tell me about it. Anyway, um, there was a study done by
James Coben and Peter Thompson, uh, who studied over 1200 state and federal cases dealing
with mediation between 1999 and 2003 and found that 152 cases considered confident, considered
the confidentiality claim. It was upheld 50% of the time. Those who rejected it did so
without much reasoning, but more importantly, the study found that there were over 300 opinions
in which what happened during a mediation was the issue, but confidentiality was not
even raised in 45 of those opinions. It was the mediator who was testifying and 65 of
those opinions. Others were offering evidence of what the mediator said or did. And then
in over 260 of them, the attorneys were offering evidence as to their own statements or conduct
during mediation. And then the last is that there may be conflicting state laws. For example,
if you have, particularly in the age of zoom, if you are mediating across state lines, um,
one state may have different rules on confidentiality than the next and may not honor your confidentiality
agreement because it does not apply to their state laws. So even though California does
say that, uh, mediation confidentiality is almost absolute and will be enforced, uh,
unless there's a clear abuse, abuse of due process or produces a result that the legislature
never intended, um, you do have to consider these possible exceptions to mediation confidentiality.
So that is it. I thank you very much. If you have any questions, please feel free to either
give me a call, uh, on my office number or my mobile number, uh, or to send me an email.
And so I thank you very much, uh, for your time. You may be eligible for CLE credit in
your state. Visit bhba.org slash podcasts for more information.