Mediator Jill Switzer Comments On The Recent Proposal Before The California Law Revision Commission To Loosen Mediation Confidentiality Statutes.
On August 30, 2015, I posted that on August 7, 2015, the California Law Revision Commission directed staff “to begin the process of preparing a draft of a tentative recommendation that would propose an exception to the mediation confidentiality statutes (Evid. Code sections 1115-1128) to address ‘attorney malpractice and other misconduct.’”
Jill Switzer, an experienced mediator who has been a member of the State Bar for nearly 40 years, has communicated her thoughts to the California Law Revision Commission about the recent proposal. She has graciously given me permission to publish her probing comments on my blog. Her comments reflect her personal views, and are not the views of any organization, committee, or business with which she may be affiliated. I welcome any comments that my readers have about this topic. Here are Jill Switzer’s comments:
1. The general concept is to propose an exception to the mediation confidentiality statutes that would address “attorney malpractice and other misconduct.” What other misconduct does this contemplate? What would that be? Since the attorney mediator is not acting as a lawyer for purposes of conducting the mediation, .e.g not giving legal advice, there’s no attorney-client relationship, what would the Commission see as misconduct by the attorney mediator?
2. The exception should apply “…regardless of whether the alleged misconduct occurred during a mediation.” So, does this mean that it would apply to the convening stage, any/all pre and or post mediation communications, telephone calls, etc.? How would that even arise, especially since the clients are not involved in the convening, the pre/post mediation communications that the lawyers and mediators may have?
3. I carry mediator malpractice insurance (in an abundance of caution), which, right now, is very reasonable because mediators don’t get sued. That will certainly change. Rates will go up and if mediators are indeed brought into litigation as defendants or cross-defendants, the rates may well skyrocket. So, I will have to raise my rates to cover the increased insurance costs. Great, try explaining that to parties and counsel who think my rates are too high as they are.
4. What if I have insurance and the defendant lawyer doesn’t? On the deep pocket theory, plaintiff’s counsel will either sue me at the outset, or the defendant will cross-complain against me for indemnity. I thus become the “deep pocket.” Will I need to ask the counsel participating in the mediation whether he/she carries insurance? Should I ask for a certificate of insurance to satisfy that inquiry? Since malpractice insurance is on a “claims made” basis, what if the attorney has insurance at the time of the mediation, but does not have it at the time the claim is made? What if my carrier decides to settle based on nuisance value, etc., costs of defense, etc? I have a deductible I have to pay, regardless of whether I’m in for a penny or in for a pound in the litigation.
Putting the mediator in the mix is going to prompt some mediators, such as me, to start looking for something else to do. I’m not going to go bare, but I’m also not going to be the “fall gal” for an attorney’s alleged malpractice. I refuse to be a guarantor.
5. Even if I know nothing, I wasn’t in any caucuses where counsel and client were discussing the pros and cons of resolution, which is where the claimed malpractice occurred, I’m going to get dragged in. I am going to have to prove a negative. No plaintiff’s counsel is necessarily going to take my word that I wasn’t present without my being deposed. Unless and until the plaintiff’s counsel then decides that there’s “no there there,” and defense counsel sees that there is no basis for a cross-complaint against me, I’m stuck.
6. Whose job will it be to advise the clients that there’s no mediation confidentiality? Shouldn’t that be the attorneys’ job? If they don’t advise in advance of the mediation, does it then become my job to advise the clients in the mediation that there’s no confidentiality? Do I demand proof from the attorneys that they have so advised? How many cases would settle without mediation confidentiality?
7. After the mediation, unless I’m continuing my efforts to resolve the matter, I shred all notes, briefs, and/or any correspondence post-mediation. If there’s now the possibility of being sued, how long do I have to keep those? Do I have to keep them at least one year post legal malpractice possibility? When does that statute start running? If I don’t, am I liable for spoliation? How do I determine whether I think the resolution (or non-resolution as the case may be) may lead to a malpractice claim and thus require document retention?
8. This proposal is only going to increase litigation and its attendant costs, which is what mediation is supposed to alleviate. Mediation is a voluntary process, so the parties can leave at any time, and I’ve had that happen. Mediation is supposed to be a way to resolve disputes in an efficient, cost-effective manner. Why is there the assumption that the client got hosed by its lawyer in mediation and was forced to settle? There are going to be many cases of "settlor’s remorse,” clients who think that they can leverage a better deal by suing for malpractice.
9. If we lose mediation confidentiality, then there’s no point to mediating. Just have everything handled as an early settlement conference, MSC, or ENE by a judicial officer and ditch mediation altogether. Given the sorry financial state of the courts these days, I’m sure that they’ll be delighted to have even more work than they already have.
This proposal takes the sledgehammer to the gnat approach. If the clients don’t want to be bound by confidentiality and thus retain the option of a potential legal malpractice claim, then they shouldn’t mediate, but please don't eviscerate what works for a great many to satisfy just a few.