Paul J. Dubow Provides Us With The Update.
Paul J. Dubow is an experienced mediator and arbitrator in San Francisco. Mr. Dubow writes often about mediation and arbitration topics, serves as an editor for California Litigation, and has authored the arbitration section of the annual update of California law for both the Litigation and Business Law sections of the State Bar of California (now, the California Lawyers Association) and the arbitration and mediation updates on the California Dispute Resolution Council website. Mr. Dubow has also been assiduously following the California Law Review Commission's study of mediation confidentiality. He has generously provided us with an update on the legislative status of efforts to create exceptions to mediation confidentiality:
For the past five years, the California Law Review Commission has been studying whether to create an exception from the strict confidentiality requirements of the Evidence Code that would permit admission of mediation communications in cases where clients are suing their attorneys for malpractice committed during the mediation. At the end of 2017, the Commission made a recommendation that permitted the admission of such evidence. It did so, notwithstanding the objections of the Judicial Council, the California Judges Association, the Consumer Attorneys of California, the California defense bar, the California Dispute Resolution Council, and about 30 other organizations. The only organization that supported it was the California Conference of Bar Associations, the organization that spurred the study in the first place. Normally, a proposal by the Commission is introduced as a bill in the Legislature at its next session and, in most cases, the bill eventually becomes law. The deadline for introducing legislation this year was February 16, but no bill was introduced. This may have been the result of the almost uniform opposition to the proposal. Instead, Senator Wieckowski introduced SB 954, which will require an attorney to inform a client about the confidentiality restrictions set forth in Evidence Code Section 1119 and obtain the client's written consent to the restrictions before agreeing to mediate. The bill is still a work in progress and we expect that there will be several amendments to it.
HAT TIP to Paul!
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