Mediation Basics: Essential Ethics of Mediation

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today.
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Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Phyllis
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Pollack of PGP Mediation, will guide you through essential ethics of mediation. Let's dive
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in.
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My name is Phyllis Pollack, and as part of the Beverly Hills training, our training program,
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I'd like to just spend about the next 60 minutes talking about the essential ethics of mediation.
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So to begin, let's first look at an outline, and what we will discuss this morning or today
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will be first, I will go over a definition of ethics. I will then discuss the model standards
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of conduct for mediators that was revised in 2005. I will then talk about the California
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statutes on mediation confidentiality, the California case law on mediation confidentiality,
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evidence code section 1129 that became effective in 2019, evidence code 703.5, which talks about
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the competency of mediators, or actually the lack of competency of mediators to testify,
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and then quasi-judicial immunity, and then finally the exceptions to mediation confidentiality.
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So let us begin.
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So the first question we have is ethics. How would you define ethics? And one definition
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of ethics is that ethics is broadly applied social standards to determine the right and
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wrong in any given situation or means or a way to determine it. It is a way that we can
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all get together and get along together in the world without chaos. It Aristotle defined
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it the same way as a means of outlining or establishing each person's obligation or duties
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to each other, to themselves, and to society as a whole. Now, while ethics involves society
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as a whole, morals are individual and personal beliefs as to what is right and wrong. And
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so that is the difference between morals and ethics. So in order to make an ethical decision,
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we need three things. We need transparency, which is the open sharing of important information.
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We need informed consent, which is agreeing to an action based on understanding of the
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action and its consequences. And finally, we need effective listening, which is grasping
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the speaker's meaning. As you will see, there are no clear-cut answers. Ethics is not always
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black and white. Why is it important? It is important to build trust, to build relationships,
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to create fairness, and to create transparency. So let's talk about the model standards of
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conduct for mediators. They were originally enacted in 1994 and authored by the American
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Bar Association section of dispute resolution, the American Arbitration Association, and
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the Association for Conflict Resolution. They were revised in 2005. And when you're talking
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about the model standards, we're talking about three essential values, which I will get to
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in a minute. But what I would like to emphasize is that no one standard is absolute. No one
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standard has priority over the other, and no one standard overrides another. These standards
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are all aspirational. They are not rules of law or anything of that sort. What you have
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to do is look at the California statutes, the rules, and the regulations to see what
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they say. So as I mentioned, there are three essential values. And they are self-dispute
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and autonomy, which involves self-determination, a party's right to make choices based on one's
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personal beliefs and values, free of coercion and constraint. And it involves informed consent,
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which is a very important concept that I will get to in a moment. Then it also involves
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procedural fairness, which is the fairness of the process to reach the mediated result.
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And the standards involved with procedural fairness include impartiality, conflict of
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interest, confidentiality, quality of process. The last value is substantial fairness. That
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is whether the outcome is good enough, whether the mediated result is acceptable. Now, some
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mediators believe that substantive fairness is of no concern to them, whereas other mediators
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do believe that they should be concerned about whether the result is substantially fair.
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I will leave it to you and your own moral compass to decide whether you think substantive
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fairness is an important value to you or not. So let's look at the first standard. The first
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standard is self-determination. And it states that self-determination is the act of coming
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to a voluntary, unquestioned decision in which each party makes free and informed choices
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as to process an outcome. Now, I've highlighted informed because that is a loaded word. And
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if you look at the California Rules of Professional Conduct, Rule 1.0.1.0.1.0e, it defines informed
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consent as a person's agreement to a proposed course of conduct after the lawyer has communicated
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and explained the relevant circumstances, including the material risks and any actual
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and reasonably foreseeable adverse consequences to the proposed course of conduct. A more
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simple definition is found in Black's Law Dictionary, which means simply a person's
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agreement to allow something to happen made with full knowledge of the risks involved
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and the alternatives. So when you go back to the definition of self-determination, it
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is saying that it is the act of a party to reach a voluntary, unquestioned decision after
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the party makes a free and informed, that is, knows all of the benefits and risks and
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the possible adverse consequences of the decision that they are about to make. So let's go to
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the second part. So while we have self-determination, the standard then goes on to say that a mediator
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may need to balance such party self-determination with the mediator's duty to conduct a quality
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of process. And what this means is that while the party may have self-determination, the
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mediator may override it in the name of quality of process and make decisions separate and
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apart from that, which a party may want. For example, the mediator may decide to hold a
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caucus whereas the parties want a joint session or the mediator may decide to have a joint
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session or a session with attorneys only even though the parties disagree. The mediator
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may decide to not have a caucus confidential whereas the parties may want it as such or
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the mediator may decide to terminate a mediation against the parties' desires or even to keep
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going against the parties' desires. But then we go to A.2 of this standard that while self-determination
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is key here, it then goes on to say that a mediator cannot personally ensure that each
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party has made free and informed choices to reach a particular decision. And so simply
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should refer them or make them aware of consulting other professionals to help them make that
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informed choice. So as you can sort of sense this first standard is inconsistent or there's
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tension in it and that while the first part says that self-determination is all important,
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the second part says a mediator can override it and the third part says that a mediator
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cannot even ensure the self-determination. Now or that a party has made a free and informed
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choice. And when we're talking about self-determination, you have to think in terms of that it can
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involve either internal threats or external threats. And by internal threats, I'm talking
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about physical or mental conditions such as a mental capacity or mental competency. And
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by external threats, I'm talking about situational ones such as coercion, duress, ignorance of
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the law, ignorance of one's rights or even time limitations. For example, somebody has
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a plane to catch by two o'clock and so the time for mediation is limited. Also, you have
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to think about how much information is sufficient for a party to make a self-determining decision.
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That is, some parties may want to know every bit and every scrap of information there is
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before making the decision, whereas other parties may not want to know anything. They
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just want to be done with it. They want out of there very quickly, sign on the dotted
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line and let's go and they do not want to know anything. So you have to think in terms
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of each party's own definition of self-determination. So let's go on to the next standard. And this
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is impartiality and this is part of procedural fairness. And when we talk about procedural
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fairness, we're talking about the mediator staying out of the substantive side of the
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dispute and is simply instituting a procedure that encourages fair play and that treats
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the disputants with dignity and with respect. So when we talk about impartiality, we're
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talking the standard provides that a mediator shall decline a mediation if the mediator
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cannot conduct it in an impartial manner. And impartiality means freedom from favoritism,
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bias, or prejudice. And that a mediator shall not act with partiality or prejudice based
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on any party's personal characteristics, background, values, beliefs, or performance
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at a mediation or any other reason. Now, you ask, okay, is it okay for me to give information
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or advice to one party and not to the other? Many mediators will say yes. Other mediators
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will think perhaps you're being partial by doing that. Now, when we talk about impartiality,
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we have to distinguish that term from neutrality. Impartiality is defined as having no favorites
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that is during the process of the mediation, the mediator treats each party in the exact
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same way, takes no sides, regardless of their personal characteristics. Whereas the term
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neutrality means simply that the mediator does not interfere with the substance of the
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dispute. The mediator remains indifferent to the result and well-being of the parties
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and is disinterested in the result. Obviously, the mediator would like to see the case settled,
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but is not concerned with the particular terms. So in essence, impartiality is defined by
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the mediators' behavior and action during the mediation, while neutrality is defined
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by the mediators' lack of interest and the outcome of the dispute. And as I said, more
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specifically the actual terms of any potential settlement.
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So let's go to conflict of interest. But before I do, I also want to mention one more point
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about impartiality. We all have biases. We all have implicit biases. We all have explicit
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biases. The trick with impartiality is to avoid explicit favoritism and bias in word
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and in action. That is, while we may have our own biases, we cannot show them. We cannot
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externally manifest those prejudices, biases, or favoritisms, in other words, we have to
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separate our feelings and views from our conduct and keep our biases, our prejudices, to ourselves
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and treat everyone equally and impartially. So on to conflicts of interest. A mediator
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shall avoid a conflict of interest or the appearance during and after a mediation. This
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is going to be a reasonable person standard. And it can arise due to the subject matter
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of the dispute or from past, present, personal, professional relationships between the mediator
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and any participant that reasonably raises the question of whether the mediator is impartial.
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And as I said, context matters. One must make a reasonable inquiry into the facts. So for
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example, if I meet what turns out to be a party to my mediation at the Grace Restore
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and talk for five minutes, that doesn't create a conflict of interest. But for example, if
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one of the parties is one that I've been having lunch with every week for the last year, that
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could conceivably create a conflict of interest. So conflict, so the context is critical and
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inquiry must be made into the context. And as I said, it is a reasonable person standard.
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And if there is a conflict, you must disclose it as soon as practical, whether it's an actual
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or potential conflict. And the conflict can arise even after you've accepted the mediation.
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And you must disclose it. It is a two step process. If you disclose the conflict, and
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the parties agree to waive it, you then must ask yourself if the conflict might be reasonably
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viewed as undermining the integrity of the mediation. And if so, you as the mediator
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should withdraw even though the parties are agreeing to waive it and do not feel that
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it is conflict. And then even after the mediation, you have to be careful about establishing relationships
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with any of the parties because it may raise a question in terms of the integrity of the
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mediation. For example, whether your actions will infect a quid pro quo, whether you've
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got some type of reward or additional income or recompense for the way you acted at the
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mediation. So even after the mediation is over, you have to be careful about your relationships
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with the parties. The next is competence. And obviously, a mediator has to be competent
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and has to have the competence that is necessary to satisfy the reasonable expectations of
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the parties. I've highlighted reasonable expectations because if you think about it, you would have
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to really cross examine the parties to figure out what the reasonable expectations are.
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So I'm not quite sure how realistic this term is. Now, obviously, your competency will be
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based upon training, experience and mediation skills and cultural understandings. And I
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do highlight cultural understandings because I think as you're aware, County of LA or Los
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Angeles area, Southern California is quite diverse when it comes to cultural backgrounds.
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I believe that the Los Angeles Superior Court has interpreted and interpreter services for
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more than 140 languages. So you have to be culturally sensitive when you mediate. If
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you take on a mediation and at a certain point during the mediation, you feel that you're
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not competent, you have a duty to advise the parties immediately, discuss it with them.
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And if necessary, request appropriate assistance or to withdraw from the mediation altogether.
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And obviously, if you are impaired by drugs, by prescription medicine, by alcohol or whatnot,
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you should not be mediating. You should simply postpone, terminate or withdraw from the mediation.
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Now confidentiality is something that I will get into in more particular, more particularly
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in a few minutes. But I just want to mention the standard that obviously a mediator shall
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maintain the confidentiality of all information obtained by the mediator in mediation unless
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otherwise agreed to by the parties or required by applicable law. Now California does have
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a mandated reporter statute, which is contained in penal code section 11165.7. And this section
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lists over 43 different types of mandated reporters. Lawyers per se are not mandated
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reporters. Mandated, if you look at the statute, mandated reporters typically involve those
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in the educational field and in the medical field and elsewhere. For example, a emergency
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medical technician, a physician, a surgeon, a marriage and family therapist trainee, a
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coroner, a medical examiner, a social worker, a district attorney investigator, a peace officer
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are part or one of the over 43 different categories listed as mandated reporters. And if you are
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by chance a mandated reporter, that duty will override the mediation confidentiality. In
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other words, just because you are mediating does not mean that you take off your mandated
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reporter hat. It is still there. And you are obligated to tell the parties that you are
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a mandated reporter so that if something comes up regarding elder abuse, elder neglect, child
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abandonment, child neglect, that you may be obligated to report it to the authorities.
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All right. So the next standard is quality of process. And this, I think, is a very important
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standard. And it provides that a mediator shall conduct a mediation in a manner that
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promotes diligence, timeliness, safety, presence of the appropriate parties, party participation,
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procedural fairness, and party competency. And A4 is important because it says a mediator
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shall promote honesty and candor among, between the parties. And a mediator shall not knowingly
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misrepresent any material fact or circumstance in the course of a mediation. Now, some take
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this to mean a positive or a conscious misrepresentation, whereas others say no, mediation by silence
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or omission will be important as well. I take A4 to mean that you cannot misrepresent
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either by omission or by commission any material fact or circumstance in the course of mediation.
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Now, there are certain circumstances where there is a duty to affirmatively speak. For
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example, where silence would lead the other party in the dark about important information
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relating to the transaction and that other party does not have access to that vital information,
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where customs of the trade or other objective circumstances would lead a reasonable expectation
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to disclose, where there is a fiduciary or confidential relationship existing, where
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there may be a special statutory obligation, such as with insurance contracts, or where
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a party makes a partial disclosure that is misleading, or to update and correct previously
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disclosed information. These are circumstances where a, where silence is a no-no, because
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there is a duty to affirmatively speak. A5 is also important. I've highlighted the sentence,
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a mediator may provide information that the mediator is qualified by training or experience
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to provide, only if the mediator can do so consistent with these standards. That means
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that as a mediator, you can provide information if you're qualified to do so. Now, there is
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a difference between information and advice. Information is simply providing the statute,
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for example, in a landlord-tenant matter. You simply tell the people what the statutes
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are regarding landlord-tenant law. Advice is when you go on and apply that statute or
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that information to the matter at hand. And this will become very tricky if you are mediating
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with self-represented parties, because obviously they may not know the law. So you simply may
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want, you may feel inclined to explain to them what the statute says or what the law
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says. But invariably, their next question will be something to the effect of, well,
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how does that apply to me and to my case? At that point, you are giving advice and you
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are taking on the role of being an attorney as opposed to maintaining your neutrality
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and impartiality as a mediator. So when I teach this Mediation Ethics, I always tell
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my students that it's a very slippery slope between providing information and giving advice,
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and you really have to be careful in doing so. The next subpart is also important, and
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it says that a mediator shall not undertake an additional dispute resolution role in the
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same matter without the consent of the parties. And before providing such service, the mediator
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shall inform the parties of the implication of the change in process and obtain their
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consent to the change. Now, where this may come up is either doing a mediation slash
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arbitration or arbitration slash mediation. In a MedARB, you may start out as a mediator,
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and if the parties can't reach an agreement, you then become the arbitrator, and this is
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where A8 would fit in, or vice versa, you start out as an arbitrator, but you withhold
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your decision, and you withhold your decision and then allow the parties to try to mediate
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to resolve it after they know all the facts. The next standard is also important. If a mediation
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is being used to further criminal conduct, the mediator should take appropriate steps,
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including postponing, withdrawing, or terminating. Note that I've underlined the word should
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or I've highlighted it, which means you should do it, but you don't necessarily have to.
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If you read the model standards of conduct, you'll notice that in some places they use
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the word shall, which as we know is mandatory, and other places they use the word should,
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which is permissive. And also note that this subpart says that the mediation is being used
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to further criminal conduct. So if the criminal conduct has already occurred, then this section
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may not apply. It's only when the mediation itself is being used as a criminal device.
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And then number 10 says that if a party has difficulty comprehending the process, issues,
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or settlement options, the mediator can make accommodations so that the party does have
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the capacity to comprehend, participate, and exercise self-determination. So this is all
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well and fine, but if you think back to the standard on impartiality, my question to you
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is that if a mediator does make accommodations so that one party can understand what's going
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on, is the mediator then being partial, contrary to the standard on impartiality? As I said
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before, if you look at these standards, you will see that there is a lot of tension or
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inconsistency among them, and you may find at times that you feel that you're getting
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twisted up like a pretzel in order to abide by all of them at the same time. Another standard,
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which I don't have listed here, and this goes back to the mandated reporter statute is subpart
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B, and it provides that if a mediator is made aware of domestic abuse or violence among
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the parties, the mediator shall take appropriate action, which includes postponing, withdrawing,
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or terminating. And again, if you are a mandated reporter, you may have to take the additional
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step of reporting it to the appropriate authority. Now, subpart C, which is on the slide, provides
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that if a mediator believes that the conduct of a party jeopardizes conducting the mediation
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consistent with the standards, the mediator shall take the appropriate steps of postponing,
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withdrawing, or terminating. Typically, the only thing that you can do under these model
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standards of conduct when you feel that one of them is being violated is to postpone,
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withdraw, or terminate. Typically, you cannot notify any authority that is beyond the realm
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of these standards or the realm of what is permissible under these standards.
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So since we are, I'm dealing or talking with attorneys, I will get into a couple rules.
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But first, I want to talk about substantive fairness. As I said, some mediators believe
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it is important, others believe it is not. So I will raise the question to you. Do you
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think you ought to be concerned about the fairness of the result? And how would you
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define fair? Would you define it based upon your own belief system, based upon laws or
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regulations or legal rules, or on your own approach to ethics? But now, let's go look
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at some California rules of professional conduct since you are attorneys. Rule 1.12,
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provides that a lawyer shall not represent anyone in connection with a matter in which
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they participated as a mediator without the informed consent, written consent of all the
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parties. If they do not have that informed written consent under the ABA model standard,
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then the lawyer would have to be screened from participating in the matter. The lawyer
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would not be able to receive any part of the fee and must give written notice of the fact
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promptly to all the parties. However, that is the model ABA rule. California inserted
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what I've highlighted as C1, that the prohibition does not arise from the lawyer's service
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as a mediator. And what this means is simply put that if you acted as a mediator in a matter,
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you cannot later represent the parties. And the reason that, and if you look at the executive
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summary to this rule, you will see that it notes that the provision excludes from the
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availability of screening lawyers who previously served as mediators or settlement judges.
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The change was made because permitting screening of settlement judges and mediators who not
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only received confidential information from the parties but actively seek such information
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would reduce confidence in the administration of justice. The executive summary cites a
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case, CHO, CHO versus Superior Court 39, Cal App 4, 113 at page 125. It's a 1995 case
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that held that no amount of screening of a settlement judge who had received confidential
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information could assuage the concerns of the parties to the settlement discussions.
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So whereas in other states, a lawyer who acted as mediator may potentially later represent
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the parties in California because we've inserted this C1, it is an absolute no, no, and cannot
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be done. Now the next rule of interest is rule 2.5, which is lawyer as a third party neutral.
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A lawyer serving as a third party neutral shall inform the unrepresented parties that
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the lawyer is not representing them. And the lawyer must take pains or take great pains
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to make sure that the self-represented party understands the difference between the lawyer
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as an advocate or representing a party and the lawyer as a third party neutral who is
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acting impartially and has no favorites. And one of my colleagues actually may have self-represented
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parties sign an acknowledgement form acknowledging the difference and the fact that the lawyer
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is not there to represent them. So let's go on to confidentiality. And when we talk about
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confidentiality, we are talking about the ultimate self-determination because a party
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has the absolute right to decide what information remains private and what information to share
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and not share. And so disclosure is strictly voluntary, which in essence is self-determination.
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And when we talk about self-determination, let me go back, when we talk about self-determination,
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we're talking about something that is intended to be kept secret. The notion of confidentiality
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refers to a voluntary agreement among parties to keep information secret. When you say something
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is privileged, you're simply referring to the protection of information from compelled
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disclosure. That is, you're talking about the ability of third parties to compel disclosure
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when it is limited. So confidentiality is merely a voluntary agreement among parties
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to keep something secret. So let's look at the history of confidentiality in California.
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In 1965, evidence code section 1152 was enacted. In 1980s, it was replaced by the confidentiality
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referring to mediation section 1152.5. Then section 703.5, which relates to the incompetency
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of a mediator to testify, except in certain instances, was enacted in 1993. And then our
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present evidence code sections 1115 to 1128 were enacted in 1997. And then 1129 of the
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evidence code was enacted in 2019. So let's look at the model standard more specifically,
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standard five. A mediator shall maintain the confidentiality of all information obtained
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by the mediator during mediation unless otherwise agreed to, or as required by applicable law.
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And I refer to the mandated reporter statute. And required by applicable law is important
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as I've noted. And if the parties to a mediation agree that the mediator may disclose the information,
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then the mediator may do so. A mediator shall not communicate to any non-party what went
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on during the mediation. As you look at the California Rules of Court and also the U.S.
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District Court rules, you'll note that the only thing that a mediator can report is whether
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the parties appeared at the mediation, the mediation went forward, and whether the parties
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settled or didn't settle. You cannot go into the details of what occurred at the mediation,
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why it didn't settle, what the impasse was, or whatever. If the mediator, okay, if the
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mediator participates in teaching, research, or evaluation, the mediator has to protect
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the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.
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And when you meet with a party in caucus, for example, if you meet with party A in caucus,
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what goes on in that caucus, you must keep to yourself and cannot convey to the parties
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to party B in another caucus unless party A says it's okay to tell party B. So in other
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words, what goes on in caucus stays in caucus and you cannot share it among the caucuses.
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And you have to promote an understanding among the parties to the extent that there will
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be confidentiality and the parties can make up their own rules regarding confidentiality
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or use your own rules or accepted practices of what will be confidential and what will
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not be confidential. So why do we have confidentiality? Three main reasons. Trust in the mediator
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and in the process to strengthen the concept of mediator impartiality to preserve the integrity
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of the process or to sum up to maintain trust, encourage forthright disclosure, and to preserve
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the party's faith in the process. That is why confidentiality is urged as being invalid.
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Now, there are additional reasons to promote candor, to promote fairness, mediator neutrality
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for privacy reasons, obviously, to protect the mediator. The mediator does not want to
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be forced to testify, does not want to be involved in any legal actions or be harassed
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in any way. Candid discussion during mediation often leads to successful mediations and successful
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mediations will encourage their future use and it will help the court because it will
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often or limited their caseload and help them resolve litigation more expeditiously.
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So there are three levels of confidentiality. The entire mediation itself is confidential.
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What goes on in each caucus is confidential and what you can't tell the judge or court
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or others. So in other words, if a case does not settle and the parties have to report
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to a for a post mediation status conference, the only thing they can tell the court is
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that the parties appeared for mediation and that it settled or it did not settle and that
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is it. So when you talk about mediation confidentiality, you're talking about two areas. One is evidence.
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It has it's a rule of admissibility in California. Our evidence code provides that it is neither
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admissible or discoverable. Other states may deem it to be a privilege, which about which
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amounts to the same thing. But it's also involved in mediation ethics and that a mediator is
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constrained from revealing information to the other side or outside of the mediation in
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terms of what occurred, which means that you cannot post anything on social media. If you
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go to a party, you cannot start discussing what happened at mediation. You as a mediator,
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you are constrained from disclosing or revealing information to anyone about what occurred
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during the mediation. So let's look at the California Evans Code Statutes. They are
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sections 1115 to 1129. And 1115 sets out the definitions. It sets out the definition of
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mediation as being a facilitated negotiation. It is a process by which a third party helps
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other parties assist them in reaching a mutually acceptable agreement. Now, be careful when
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you look at the definition of mediator, because it not only includes the mediator himself
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or herself, but it also includes any person designated by the mediator to assist in the
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mediation or to communicate with the parties to prepare for a mediation. In other words,
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mediator includes your case manager or your assistant who is setting up, who is helping
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you set up the mediation. And this becomes important when you look at mediation consultation,
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because that means any communication between a person and a mediator for the purpose of
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initiating, considering, or reconvening a mediation or retaining the mediator. And what
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this means is that when somebody calls and talks to your case manager or assistant about
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setting up a mediation or initiating it, that is a mediation consultation. And because your
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case manager is defined as a mediator, all of everything that is said in that conversation
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will be covered by mediation confidentiality. So mediation confidentiality attaches the moment
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that somebody talks to your assistant about setting up a mediation with you or whether
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it is even feasible, because if you look at the definition in 1119A and B, it provides
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that no evidence of anything said or any admission of any writing or oral communication made
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for the purpose of and the course of or pursuant to a mediation or mediation consultation is
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admissible or subject to discovery and disclosure cannot be compelled in any non-criminal proceeding.
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That is in any arbitration and any administrative agitation or any civil action. So as I said,
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the moment that somebody talks to your case manager, that is a mediation consultation
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and is deemed covered by mediation confidentiality. Part C is a little bit broader and it provides
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that all communications, negotiations or settlement discussions by and between the parties in
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the course of a mediation or mediation consultation shall remain confidential. And this does include
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conduct that is intended as an assertion. So if you walk into a caucus and you ask a question
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and somebody either shakes their head or nods their head or raises their thumb or gives
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you a high five, some sort of assertive conduct that will be covered by mediation confidentiality.
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So California evidence code 1120 essentially says that evidence that would otherwise be
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admissible or subject to disclosure as part of discovery does not suddenly become inadmissible
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because it was used during a mediation. So for example, if during a mediation you have
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the parties using answers to interrogatories or shows you a video or a document that was
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produced in the normal course of discovery, it does not all of a sudden get covered by
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mediation confidentiality. It will still be admissible or otherwise discoverable. And
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in contrast, evidence that is created or produced solely for use and mediation will be covered
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by mediation confidentiality. There is a case called Roe Haas versus Superior Court, 15
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Cal Reporter 643 or 33 Cal 4407 decided by the Supreme Court in 2004. And what happened
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was the owner of an apartment building sued the general contractor for mold and toxic fumes
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in the apartment building. And as part of the mediation, they hired experts to look at
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the toxic mold and other stuff and to make reports. That matter settled. The tenants
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then sued the landlord and they wanted those expert reports. And the Supreme Court said,
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no, they are not available because the experts provided those reports on the mold and other
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toxic materials solely and only as part of the mediation. So they are not discoverable.
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Now evidence code section 1120 goes on to say that the chapter does not limit the admissibility
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of an agreement to mediate a dispute, the effect of an agreement not to take a default
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or an agreement to extend the time within which to act or refrain from acting and a
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pending civil action or disclosing of the mere fact that a mediator served is served
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will serve or was contacted about serving. And it also codifies the decision in LAP versus
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the Superior Court, which held that the declarations of income and expense or the financial disclosure
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statements required by the family code do not suddenly become inadmissible because they
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were used as part of a mediation. And LAP versus Superior Court, the husband and wife
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went to mediation in order to settle the property and support obligations as part of a divorce
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and their income and expense disclosure statements were produced. The husband later sought to
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have them excluded in a subsequent civil proceeding saying they were used as part of the mediation.
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And ultimately the appellate court said no, and the Supreme Court denied certiorari of
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the case. So the fact that a declaration of disclosure or your income financial disclosure
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statement is produced as part of the family code does not and is then used in a mediation
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does not suddenly cloak it with mediation confidentiality.
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Now evidence code 1121 simply provides that you cannot be required to submit a report to
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the court regarding involving or including an assessment and evaluation or a recommendation
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of what went on at mediation. The only thing that you can submit, as I've said, is that
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the parties appeared for mediation and it settled or it did not settle. And that is
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it. Evidence code 1122 I have highlighted Bay 1 because it says that the only way that
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a communication occurring during mediation will become admissible is if all parties who
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conduct or otherwise participate in the mediation expressly agree in writing. In other words,
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the consent of the mediator is also needed. And I think a lot of folks don't realize that
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they need the consent of the mediator in order to waive confidentiality. Many probably think
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that as long as the parties consent that is sufficient. And so I wanted to point this
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out to you.
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Now the next statute is extremely important. 1123 provides that the only way that a written
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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
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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
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00:48:41,200 --> 00:48:47,800
agreement. And the very last paragraph simply provided that if a dispute arose regarding
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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
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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
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00:49:12,560 --> 00:49:19,200
Supreme Court agreed with the trial court because the agreement did not have the magic
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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
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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
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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,
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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
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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,
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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
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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
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00:56:33,400 --> 00:56:42,560
folks got together and drafted what is known as evidence code 1129. 1129 creates a prior
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00:56:42,560 --> 00:56:49,480
disclosure or informed consent requirement whereas the proposed legislation was trying
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00:56:49,480 --> 00:56:56,800
to create an exception to mediation confidentiality or an after the fact type of arrangement. And
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00:56:56,800 --> 00:57:04,280
evidence code 1129, as I said, is a prior disclosure informed consent that simply provides
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00:57:04,280 --> 00:57:10,240
that an attorney who represents a client participating in mediation shall as soon as
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00:57:10,240 --> 00:57:17,120
reasonably possible before the client agrees to mediate, provide them with a printed disclosure
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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
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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
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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
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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
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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
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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
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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
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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
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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.