Revising Confidentiality

y Cynthia Pasternak
Revising
Confidentiality
The California Law Revision Commission has been tasked with resolving
the competing public policy goals of client rights, professional ethics, and
mediation confidentiality
MEDIATIONS RESOLVE thousands of
disputes that would otherwise clog Cali -
fornia’s trial courts. Legislative and judicial
policies favor mediation and settlement. 1
Con fi dentiality is widely recognized as essential
to effective mediation because expression
of frank views without fear that the communication
will be used later in litigation is
necessary for full participation. 2 Mediation
confidentiality is governed by the Evidence
Code, which provides that any communication
made for the purpose of, in the course
of, or pursuant to, a mediation is inadmissible
in any subsequent noncriminal proceeding. 3
While parties may reveal noncommunicative
conduct in a mediation, 4 the statute precludes
disclosure of mediation communications or
a mediator’s assessment of a party’s conduct. 5
Absent a statutory exception such as fraud,
illegality or duress, 6 express waiver, 7 or due
process violation, 8 mediation participants
may trust that all communications and writings
prepared for and revealed at mediation
are protected against disclosure in future
proceedings, whether or not a case settles. 9
This trust fosters candid communication and
resolution of disputes.
The public policy rationale for mediation
confidentiality is so strong that, traditional -
ly, the California Supreme Court has been un -
willing to create judicial exceptions to the
mediation confidentiality statutory scheme. 10
California courts have upheld the mediation
privilege “even in situations where justice
seems to call for a different result,” 11 such
as “where the unavailability of valuable civil
evidence” 12 results in dismissal of claims of
attorney malpractice or breach of spousal
fiduciary duty. 13 Judicial construction of and
judicial exceptions to mediation confidentiality
may be crafted “only where due process
is implicated, or where literal construction
would produce absurd results” that clearly
would defeat legislative intent. 14 The Cali -
fornia Supreme Court repeatedly has volleyed
back to the legislature the task of resolving
competing interests and carving out exceptions
to mediation confidentiality. 15
The legislature’s attempt to alter mediation
confidentiality, however, has been met with
substantial opposition. For example, the legislature
postponed the hearing on Assembly
Bill 2025, which excepted communications
between a client and his or her attorney during
mediation in actions for legal malpractice,
breach of fiduciary duty, or professional discipline.
In March, the bill was withdrawn.
Previously, in 2012, the legislature by joint
res olution directed the California Law Rev -
ision Commission (CLRC) to analyze the
relationship under current law between mediation
confidentiality and attorney malpractice
or other misconduct, and the purpose and
impact of those laws on a variety of public
interests. 16 This September the CLRC an -
nounced it was in the process of formulating
a tentative recommendation and asked for
input from representatives of a wide spectrum
of interests. 17 The CLRC’s extensive study
may quell a maelstrom of opposition to its
proposed revisions to the mediation confidentiality
statutes. While waiting for the
Cynthia Pasternak is a shareholder at Pasternak
& Pasternak, ALC, and full-time mediator at ADR
Services, Inc., specializing in personal injury, product
liability, business, employment, healthcare,
real estate, and civil rights.
AMANE KANEKO
18 Los Angeles Lawyer December 2015