Fellow Mediators Erica Bristol, Phyllis G. Pollack, and I Participated On Panel.
Above: President Roosevelt and party visiting Old Franciscan Mission in Santa Barbara. 1903. Library of Congress.
On November 10, 2016, I had the pleasure of participating in a panel with fellow mediators Erica Bristol and Phyllis G. Pollack in Santa Barbara.
Phyllis G. Pollack is the principal of PGP Mediation and past chair of the California State Bar ADR Committee. Phyllis spoke about California Law Revision Commission activity aimed at revising mediation confidentiality in California. She recited the recent history of mediation confidentiality, beginning with Cassel v. Superior Court, 51 Cal.4th 113 (2011), the California Supreme Court case strictly enforcing mediation confidentiality. Phyllis discussed the Law Revision Commission’s in-depth study about creating an exception to mediation confidentiality for evidence proving or disproving professional misconduct or malpractice by an attorney advocate where the misconduct occurs in the context of the mediation.
Phyllis suggested that if mediation confidentiality is loosened up in California, lawyers who represent clients in mediation will be more exposed to malpractice claims arising out of mediation. If in fact this happens, we could see malpractice premiums for policies covering mediators become more expensive. She also suggests that courts could become burdened with new cases, new discovery disputes, new protective order procedures, and requests for in camera proceedings.
Erica Bristol is a mediator and intellectual property attorney. She is the current Chair of the State Bar’s Litigation Section’s ADR Committee, and a principal of EB Resources Group. Erica discussed differences between the federal and state mediation privileges. The privilege exists in California and is enshrined in our Evidence Code, but the privilege varies in federal jurisdictions. One solution to the uneven application of the mediation privilege courts would be to create a federal mediation privilege in the Federal Rules of Evidence. However, unless that happens, attorneys practicing in federal courts need to consider jurisdictional privileges, give consideration about what information they can safely disclose in mediation, and inform their clients about the application of mediation confidentiality.
I suggested that President Elect Trump will impact the use of arbitration through the likely nomination of conservative Supreme Court justices, because the conservative wing of SCOTUS has been very willing to enforce arbitration agreements, whereas the liberal wing of SCOTUS has been more critical of the use of arbitration to resolve disputes.
I spoke about arbitration in the context of IP disputes. I noted that IP patent, copyright, trademark, domain name/cybersquatting disputes, and license disputes may be susceptible to arbitration. Numerous arbitral bodies exist for arbitrating IP disputes, including WIPO (the World Intellectual Property Organization and Mediaiton Center), the Hong Kong International Arbitration Centre, and the organizations familiar to us here, including the AAA, ADR Services, JAMS, and JudicateWest.
I discussed the application of the Federal Arbitration Act, “gateway issues,” the application of delegation clauses that determine whether a judge or arbitrator decides arbitrability, class arbitration, stays, incorporation of arbitral rules in the arbitration agreement, and the use of click wraps to bind persons using the internet to arbitration agreements. While case law cannot be overlooked, the best way to begin to analyze most arbitration issues in a dispute is with copies of the arbitration agreement, the rules of the arbitral organization, the Federal Arbitration Act, and The Rutter Group treatise on ADR.