Louie Castoria, a partner at Kaufman Dolowich & Voluck LLP, and a mediator, has authored an article suggesting we may take a bit too much for granted about mediation confidentiality, and advocating that California not erode mediation confidentiality in malpractice cases following mediation settlement. The article is well worth reading.
Thus, California attorneys and their clients typically hear the mediator’s injunction, at the beginning of a mediation, “everything in mediation is confidential.” However, the California Law Revision Commission (CLRC) is reviewing whether to create a malpractice exception for mediation confidentiality. Furthermore, the protections of mediation confidentiality depend on whether federal or state rules apply, and if the answer is that state rules apply, then one must consider which state’s rules apply.
Mr. Castoria is concerned that the CLRC’s ongoing review of mediation statutes is a search for a solution to a problem that appears too infrequently to justify erosion of mediation confidentiality. “Is the incidence of coerced settlements so great,” he asks, “that we should essentially scrap mediation confidentiality?”