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Potential Exception to Mediation Confidentiality Looming

July 11, 2017

To my colleagues who practice law in California:

For quite some time, principally as fallout from the California Supreme Court decision in Cassel v. Superior Court, 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437 (2011), the California Law Revision Commission (CLRC) has been studying the relationship between mediation confidentiality and attorney malpractice and other misconduct.

Now, CLRC has tentatively recommended the creation of a new exception to mediation confidentiality.

According to the CLRC’s recent Press Release, “the proposed new exception is designed to hold attorneys accountable for misconduct in the mediation process, while also allowing attorneys to effectively rebut meritless misconduct claims.”

CLRC’s Press Release can be found here: http://www.clrc.ca.gov/pub/Press/Press-K402.pdf

Here is a link to the 162 page publication of the CLRC containing the recommendation: http://clrc.ca.gov/pub/Misc-Report/TR-K402.pdf .

The proposed exception is set forth in a proposed statute, Evidence Code Section 1120.5, set out on page 145 of the above publication.

In large part, the mediation community, including me, believes that the proposed exception, or any exception, to confidentiality may have a chilling effect on mediation, and diminish the possibility of settlements in mediation, as there is a risk people will not feel comfortable and speak candidly in mediation if they know that under certain circumstances what has been said and done in mediation may become admissible.

If you believe that the proposed loophole in mediation confidentiality, if it becomes law, may have a negative impact on your use of mediation as a tool for dispute resolution, you might contact the CLRC in that regard. The above Press Release seeks public comment by September 1, 2017.

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David I. Karp is a full time independent mediator of real estate and business disputes in Southern California.  His website is at http://karpmediation.com .

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From → Law, Mediation

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