A principal purpose [of mediation confidentiality] is to assure prospective participants that their interests will not be damaged, first, by attempting this alternative means of resolution, and then, once mediation is chosen, by making and communicating the candid disclosures and assessments that are most likely to produce a fair and reasonable mediation settlement.
-Cassel v. Superior Court (2011) 51 Cal.4th 113, 132-133.
Confidentiality is a core principle of mediation. Confidentiality, in fact, is expressly identified as the prime concern of the Uniform Mediation Act (“UMA”). The underlying premise is that the effectiveness of mediation depends on the candor of the participants. As the drafters of the UMA put it, “Parties engaged in mediation, as well as non-party participants, must be able to speak with full candor for a mediation to be successful and for a settlement to be voluntary.” The UMA’s central rule is that a mediation communication is confidential, and if privileged, is not subject to discovery or admission into evidence in a formal proceeding [see Sec. 5(a).] In proceedings following a mediation, a party may refuse to disclose, and prevent any other person from disclosing, a mediation communication.
California has not adopted the UMA; instead, in 1997 (pursuant to the recommendations of the California Law Revision Commission) the legislature enacted the existing mediation confidentiality scheme,iii which is arguably the world’s most protective and goes far beyond even what the UMA provides. The provisions of California Evidence Code Section 1119 et seq. create an absolute bar to admissibility of covered mediation communications in subsequent civil and administrative actions. Unlike a mere evidentiary privilege, which can be waived, mediation confidentiality operates to preclude admissibility of words exchanged and documents generated for mediation, and even makes agreements made in mediation inadmissible unless specific statutory requirements are met (i.e. the magic words are used.)
There are many reasons why protection of confidentiality is so important. Brainstorming options is an essential component of mediation, and the willingness to share new ideas requires a sense of safety. If participants feel as though admissions, positions, and proposals made in mediation can be used against them later, this will chill the kind of free, honest communication which is necessary to feed the mediation process. Interest-based negotiations, furthermore, require that participants identify their underlying needs and concerns honestly. Posturing, to the extent it masks interests, runs directly counter to the goals of mediation. In Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928 (2nd Cir., 1979), cert. denied, 444 US 1076, 62 L.Ed.2d 758, 100 S.Ct. 1093 (1980), the court noted, “If participants cannot rely on the confidential treatment of everything that transpires during these sessions then counsel of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, non-committal manner more suitable to poker players in a high-stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute.” Id. at 930. Finally, confidentiality implicates the neutrality of the mediator. The specter that the mediator might someday be called as a witness in court on behalf of one party against the other threatens the mediator’s neutrality, and parties might stifle their communication defensively in anticipation of such an eventuality.
One Past Effort To Limit Mediation Confidentiality
Due to the efforts and support of AFCC and others concerned about the welfare of divorcing families, particularly the children, California enacted legislation requiring parties to participate in court-connected mediation prior to any hearing on parenting issues. (Family Section 3177 reads: Each superior court shall make a mediator available. The court is not required to institute a family conciliation court in order to provide mediation services.
The gold standard of mandatory mediation started in Los Angeles Superior Court’s Conciliation Court, through the efforts of Hugh McIsaac (former Director of Family Court Services) and others. The essence of the Conciliation Court was absolute confidentiality, for all of the reason discussed above. Family Law Section 3177 underscores this principle: Mediation proceedings pursuant to this chapter shall be held in private and shall be confidential. All communications, verbal or written, from the parties to the mediator made in the proceeding are official information within the meaning of Section 1040 of the Evidence Code.
In an effort to meet the concerns of judicial officers for increased efficiency and information to assist in deciding contested custody and visitation matters, over half of the counties in California established local rules to permit mediators in court-connected mediation to disclose communications made by the parties in mediation and make custody and visitation recommendations to the court. In other words, counties made the mandatory custody and visitation “mediation” non-confidential.i
The California Supreme Court has repeatedly and unambiguously reaffirmed mediation confidentiality (Foxgateiv and Casselarev the key decisions). These decisions were inconsistent with the non-confidential nature of the mandatory custody and visitation mediation occurring in nearly half the counties in the state. In an effort to keep the recommending aspect applied in so many counties, yet preserve mediation confidentiality inviolate in accordance with clear statutory and case law, the legislature amended Family Code Section 3183(a) effective January 1, 2012 to provide that if a child custody mediator is authorized to submit a recommendation to the court, the process must be referred to as “child custody recommending counseling” and the mediator who makes those recommendations must be referred to as a “child custody recommending counselor.” The theory being, of course, that if a process is really mediation, it must be confidential, and if it is not confidential, it must be something else.
Recent Rumblings To Limit Mediation Confidentiality
Since Cassel, California has been a beehive of activity for efforts to limit mediation confidentiality. In the family law context, there have been two primary lines of attack.vi First, some argue that the strong public policy in favor of financial disclosure between spouses should trump mediation confidentiality, such that a motion to set-aside a mediated marital settlement agreement on grounds of misleading or incomplete financial disclosure (which the existing mediation confidentiality scheme renders a practical impossibility) would be viable. Second (and this is not limited to family law), others argue that mediation confidentiality should not shield attorneys from malpractice or disciplinary claims arising from services rendered in the mediation context. The California legislature has directed the California Law Revision Commission to analyze “the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct . . . .”vii
The Court of Appeal addressed the financial disclosure issue in Lappe v. Superior Court (2014) 232 Cal.App.4th 774. In Lappe, the Court of Appeal held that because mandatory financial disclosures statements (Preliminary and Final Declarations of Disclosure) are required in every dissolution of marriage case, regardless of whether the parties mediate, and are therefore not “prepared for the purpose of, in the course of, or pursuant to” mediation within the meaning of Evidence Code Section 1119 (b), they fall outside the scope of mediation confidentiality protection and are admissible in a subsequent action to set aside a mediated agreement. Although the court hastened to note that its ruling does not represent the elevation of financial disclosure over mediation confidentiality (“we are not crafting an exception to the mediation confidentiality statutes”), the result of this decision does in fact represent a crack in the momentum for absolute mediation confidentiality.
Following Lappe, the San Francisco Bar Association proposed Bar Resolution 09-03-2015 for consideration at the State Bar Conference in September 2015. This resolution sought to expand Lappe by amending California Evidence Code Section 1120 to create an exception to mediation confidentiality for communications between spouses and Registered Domestic Partners that constitute a fraudulent breach of fiduciary duty. Due in part to vehement opposition by many bar associations and mediator groups, this resolution was withdrawn, but given the strong public policy in favor of full financial disclosure in family law actions, similar resolutions could and likely will be re-introduced in the future.
With regard to attorney malpractice and attorney disciplinary proceedings, efforts to limit mediation confidentiality are ongoing. In 2012, AB 2025 was introduced to amend Evidence Code Section 1120 to permit: “The admissibility in an action for legal malpractice, an action for breach of fiduciary duty, or both, or in a State Bar disciplinary action, of communications directly between the client and his or her attorney during mediation if professional negligence or misconduct forms the basis of the client’s allegations against the attorney.”
This proposed bill was referred to California Law Revision Commission (CLRC), which is currently considering a recommendation to carve out an exception to mediation confidentiality for attorney malpractice or disciplinary proceedings. CLRC has for the moment deferred consideration of additional confidentiality exceptions, e.g. for mediators with California Bar Licenses or for fee disputes between mediation participants and their lawyers and/or mediators with California Bar Licenses. CLRC has also deferred consideration of proposals to eliminate or reduce the quasi-judicial immunity for mediators currently provided for in Howard v. Drapkin (1990) 222 Cal. App.3d 843.
Limiting or eliminating mediation confidentiality in any way would undeniably represent a sea change in California family law mediation. As Ron Kelly, an expert advisor to the California Law Revision Commission in the study and drafting of the existing statutory scheme, notes, “Predictable confidentiality will no longer exist.”viii Absence of predictable confidentiality will impact whether mediators, attorneys and clients choose to participate in family law mediation. It will impact the informed consent that must be obtained by parties who do opt to participate. It may impact mediation costs, success rates and, ultimately, court calendars. Some mediation confidentiality proponents go so far as to argue that “Mediation, as we know it, will not survive this change.”ix
It is also apparent that all stakeholders must make their voices heard now. We know that silence or perceived apathy in the face of change can influence judicial and/or legislative action. For example, the California Supreme Court, in its controversial recent ruling on date of separation which drew heavily on an earlier case called Marriage of Norviel, stated: “There appears to have been no reaction from the bench or bar subsequent to the Norviel decision contending that the Norviel majority had introduced a sudden new rule that was legislatively unintended and unworkable. No movement to promote the position of the Norviel dissent seems to have materialized.” Marriage of Davis (2015) 61 Cal.4th 846. One way to be heard is to send comments to Chief Deputy Counsel Barbara Gaal at firstname.lastname@example.org. To obtain background, related documents and ongoing updates, interested parties can also subscribe to the Law Revision Commission’s study at http://www.clrc.ca.gov/K402.html#Subscribe.
We find ourselves at a watershed moment for California mediation confidentiality. California’s confidentiality scheme, which is as longstanding as it is highly protective, is currently being challenged in fundamental and far-reaching ways. Proposed changes would have tremendous consequences for every aspect of California family law mediation. Interested practitioners need to inform themselves about the proposed changes and speak up urgently if they wish to be heard. By the time this article goes to print, there may be considerable new developments in the struggle over the scope of mediation confidentiality. Stay tuned.
I. California Counties are free to adopt a non-confidential form of counseling where the family court services representative is available as a witness, but under changes in the law these recommending counselors are no longer called mediators for a very important reason- namely avoiding the appearance of confidentiality when it is not.
II. This article is based partly on a seminar conducted in Los Angeles, San Ramon, and Carlsbad by the authors, Making the Most Out of Mediation and Crossover Litigation ( November 2015) produced by California Family Law Report.
III. Simmons v. Ghaderi (2008) 44 Cal.4th 570, 579.
IV. Foxgate Homeowners’ Association v. Bramalea California Inc. (2001) 26 Cal.4th 1 (holding the then-new act provides for “no exceptions,” and unqualifiedly bars disclosure of mediation communications, even those implicating bad faith conduct.)
V. Cassel v. Superior Court (2011) 51 Cal.4th 113 (holding that statutory confidentiality protections bar disclosure of communications between a mediation disputant and his own counsel, even if these occur outside the presence of the mediator or other disputants).
VI. This article is not intended to be a comprehensive study of this issue but only an update of some of the key issues and recent developments.
VIII. Flyer by Ron Kelly entitled “Do you Want to Protect Mediation Confidentiality?” (email@example.com).
IX. Judge Susan Finlay, October 2, 2015 email to Barbara Gaal.
Judge Thomas Trent Lewis is the Immediate Past President of the California Chapter of AFCC. He was Assistant Supervising Judge of the Family Law Department of Los Angeles Superior Court from 2011 and currently serves in that court’s long cause handled long cause family law trials. In 2015, Judge Lewis was presented with the Spencer Brandeis Award, the Los Angeles County Bar’s highest honor.
Elizabeth Potter Scully, CFLS, is a partner in the Los Angeles family law firm, Jacobson, Potter, and Shebby and served on the Executive Committee of the Family Law Section of the Beverly Hills Bar Association. She teaches Mediation and Negotiation at UCLA School of Law.
Forrest S. Mosten, CFLS, has been in private mediation practice since 1979. He also serves as a non-litigation family lawyer who offers limited scope representation for clients in mediation and self-represented litigants. He is an Adjunct Professor of Law at UCLA School of Law where he teaches Mediation, Family Law Practice: A Non-Litigation Approach, and Lawyer as Peacemaker.
Mr. Mosten and Ms. Scully are co-authors of the Complete Guide to Mediation, 2nd Edition (2015) and the Lawyer’s Guide to Unbundled Legal Services (forthcoming, 2016) published by the ABA Section on Family Law.