California Law Revision Commission Revisits Mediation Confidentiality At Its October 8, 2015 Meeting.
The California Law Revision Commission met on October 8, 2015, to address the issue again. As of the date of this post, I have not been able to find minutes or a video recording of the meeting. However, I am informed that the CLRC has decided to proceed with drafting legislation to remove current confidentiality protections when misconduct is alleged as to a lawyer acting in the role of advocate (as opposed to a lawyer acting as a mediator). An earlier decision to draft legislation allowing in mediation communications when attorney mediator misconduct is alleged has apparently been reversed. The ongoing proceedings of the CLRC on mediation confidentiality may be followed at: http://www.clrc.ca.gov/K402.html
Another Look at Mediation Confidentiality: Does It Serve Its Intended Purpose?
Eric van Ginkel, mediator, arbitrator, and adjunct professor for the Strauss Institute for Dispute Resolution, has published an article in Vol. 32, No. 8, September 2014, Alternatives to the High Cost of Litigation, a monthly publication of the International Institute for Conflict Prevention and Resolution. The article provides a framework for analyzing the purpose of mediation confidentiality by considering the varieties of mediation confidentiality, the interests of the mediator, the parties, and non-parties in preserving confidentiality, and the need for confidentiality before and after a settlement is reached. Prof. van Ginkel is a fan of the Uniform Mediation Act, which he describes as “approaching Nirvana” compared to the California mediation statute. A summary of his article is available on-line at pages 4 to 7 of a recent memo prepared by the CLRC.
COMMENT: Much of the debate concerning whether to legislate exceptions to mediation confidentiality circles around whether a bright-line confidentiality rule that may be harsh in an individual case by excluding evidence of malpractice or duress nevertheless offers widespread and beneficial effects by facilitating candor, trust, and low transaction costs.
When things good sideways in mediation, we are tempted to look only backwards at the confidentiality rules, and ask ourselves how a different confidentiality rule could right the wrong. When we ask ourselves about the beneficial effects of mediation confidentiality, we generally have a different perspective: we are looking at the benefits of candor, trust, and low transaction costs before the problem occurs in the individual case. “The practical challenge is to learn to see [ex ante] argument every time it’s available: to learn to think the ex ante way when a case is full of cues tempting everyone to only look backwards.” See Ward Farnsworth, The Legal Analyst: A Toolkit for Thinking About the Law (University of Chicago Press 2007), p. 6. Interestingly, Prof. van Ginkel notes: “To date, no study has been undertaken that would give us the empirical data that connects success in mediation proceedings with the availablity of a form of confidentiality protection.” We have insights into the value of mediation confidentiality, and a dearth of empirical evidence.