Resources > Crafting ADR Law and Policy

 

Are you interested in helping to craft sound ADR law and policy,
or in studying its development?

This section is intended to tell a story, through concrete examples, of what you can accomplish in this area if you're focused and committed for the long haul.

Since the late 1980's Ron Kelly has worked to initiate and craft statutes, case law, court rules, administrative regulations and public policy protecting the integrity of mediation and arbitration.

The Index of Sample Writings below provides some examples of these largely successful efforts, and potential models for your efforts. These are public fliers, petitions and articles, detailed recommendations and analyses, appellate briefs, letters and samples from policy conferences and meetings convened to bring together affected stakeholders.

Three guiding principles are consistent over the years:

  • 1. Preventing Coercion - Protecting against a mediator coercing parties into an "agreement" by threatening to make adverse reports to the judge or other decision-maker, or threatening to become a witness against any party. See for instance CA Evidence Code sections 703.5, 1121, and 1125, and Uniform Mediation Act Section 7. Ron initiated the formation of each of these sections.
     
  • 2. Confidentiality - Protecting disputants' ability to talk candidly in mediation without fear their words could later become evidence against them. See CA Evidence Code Div. 9 Chapter 2 (sections 1115-1129) especially section 1119.
     
  • 3. Informed Consent - Ensuring that disputants understand their rights and don't waive them unknowingly. See for example CA Evidence Code sections 1123 and 1129, and Business and Professions Code section 7191.

A central example is California's main code chapter defining and governing mediations, Evidence Code sections 1115-1129. In 1995 Ron initiated its formation. At the request of the California Law Revision Commission, he then acted as the Commission's expert advisor throughout its drafting and enactment. It was enacted by unanimous vote of the Legislature. In five subsequent court challenges, it's been unanimously upheld by the California Supreme Court.

The Commission said about Ron's work:

"Your assistance in this project has been critical. You have brought problems to our attention, suggested solutions, provided background on issues, and analyzed proposals. You have always been fair and even-handed in this effort. Your experience as a mediator, your background as a drafter and sponsor of several of the current code sections, and your knowledge of the legislative history of the current law in this area have been a tremendous resource to us."

Ron also submitted amicus briefs to the California Supreme Court in its first two cases concerning this chapter, cited in both decisions unanimously upholding it (Foxgate v. Bramalea and Rojas v. LA Superior Court).

Another example is the set of informed consent requirements for arbitration in California Business and Professions Code section 7191. Ron initiated and guided enactment of this section in 1994 through AB 3302 by Speier. It was upheld on review by the California Court of Appeal  (Woolls v. LA Superior Court).

Index of Sample Writings

1993 - Model Public Policy - Your Rights in Mediation

Over two hundred bar association leaders, mediation program directors, mediators, university deans and professors, and interested organizations signed the following request titled "Your Rights in Mediation - Model Public Policy". The signers declared their belief that participants in mediation are entitled to these five basic rights, and requested that any proposed laws or regulations maintain these rights.

Your Rights in Mediation

Model Public Policy

We believe that people who participate in mediation are entitled to these rights:

  1. Voluntary Process Without Prejudice. The resolution of a dispute is best achieved in a voluntary process. People should be free to choose voluntary mediation, and be free to withdraw from mandatory mediation, without prejudice to their rights or their other methods of obtaining justice.
  2. Confidential Process. It is essential that mediation participants be free to speak truthfully, without fear that their own words could be used against them later in an adversarial process.
  3. Informed Consent. Participants must retain their rights to informed consent in all aspects of the mediation process. Disputants are entitled to full disclosure by their mediator of any conflicts of interest. Any agreements made in mediation, especially those waiving claims, must have the informed consent of the parties to be enforceable.
  4. Free Choice of Neutrals. Mediators help people agree to settle disputes on their own terms. They don't write findings deciding who's wrong, like arbitrators. People with disputes have the right to jointly select any neutral person or organization to mediate for them. No specific degree or license should be either required or barred, for a person to serve as a mediator.
  5. Full and Equal Access. Early voluntary resolution of conflict is both cost-efficient and most consistent with democratic values. Mediation enables people to retain their own decision-making power. It is appropriate for government to promote the informed use of mediation, and to ensure full and equal access to mediation services.

We request that these rights be maintained in any proposed laws or regulations.

* Background. This set of rights has been referred to as the "Mediation Bill of Rights". It's aimed at public policy makers, practitioners, trainers, and educators concerned about the long-term integrity of the field. It provides a starting point for those who believe in mediation - those who want to make sure that mediation is not reduced to an efficient way of cheating people out of their rights with coerced settlements written in secret back-room proceedings. Its provisions have helped guide the formation of responsible law, regulation, and court rules in California and elsewhere. It has been used as a basis for ethics codes and organizational principles. It was authored and circulated by Ron Kelly, Mediator (510-843-6074) and may be copied for noncommercial purposes.

1991 Stakeholder Meeting Agenda

TENTATIVE AGENDA
12/4 Meeting, 11:00am-1:00pm
State Capital Annex, Room 2040

PURPOSE: Develop Amendment to Senate Bill 711 to Eliminate Unintended Effects on Settlement Process (as agreed by Barrow and Kelly)

PARTICIPANTS: Mr. Gene Wong, Legislative Aide, Chairman Lockyer's Office, Staff Counsel, Senate Judiciary Committee; Ms. Nancy Drabble, Legislative Counsel, Cal. Trial Lawyers' Ass. (SB711 Co-Sponsor); Ms. Nancy Peverini, Ass. Leg. Counsel, Cal. Trial Lawyers' Ass.; Mr. Steve Barrow, Director of Policy Advocacy, Center For Public Interest Law (SB711 Co-Sponsor); Ms. Mary-Alice Coleman, Legislative Counsel, Dispute Resolution Dept. of Consumer Affairs; Ms. Anne Sheehan, Deputy Director - Legislation Dept. of Consumer Affairs; Mr. Gary Friedman, Director, Center for Mediation in Law (Co-Drafter, Evidence Code Sec. 1152.5); Ms. Lauren Burton, Executive Director, Dispute Resolution Services (Non-Profit Corp./L.A.County Bar, Co-Drafters 1152.5); Ms. Susan Kohn Ross, Legislative Chair, Dispute Resolution Services; Ron Kelly, Mediator

CO-FACILITATORS: Wong and Kelly

FACILITATORS' PROPOSED AGENDA:

11:00 Introductions
11:05 Adopt agenda with any changes
11:10 Brief summary of sponsors' interests
11:15 Brief summary of mediation community's interests
11:20 Identify areas of agreement in principle such as:
  Public has right to protection from known hazards
  Discoverable evidence shouldn't be made inadmissible
  Early voluntary settlements help unclog courts
  Existing protections for settlement PROCESS are sound
  Others?
11:25 Discuss specific amendment language
11:55 Form follow-up working group
  Set date for final language report-backs
12:00 Wong leaves

Working group (and others) work on tentative language
Lunch provided by Kelly

1:00 Adjourn

1992 Statewide Confidentiality Conference

 

WILL YOUR MEDIATION STAY CONFIDENTIAL?

January 18, 1992  Stanford Law School

An Interactive Conference Co-Sponsored By:
The Northern California Council for Mediation and
The American Arbitration Association

MCLE Approved Credits

Program Coordinator: Ron Kelly, Mediator

  • Balancing Individual Rights to Confidential Mediation
     with Public Rights to Protection from Known Hazards Ethical and Public Policy Issues
     
  • Mediator-Client Privilege In Reorganizing Court Systems
     
  •  How Mediators Respond to Subpoenas - 
            Mediation Confidentiality Agreements and Responses to Subpoena

CO-SPONSORED BY:

Alameda County Bar Association

Bar Association of San Francisco

Center for Dispute Resolution

ConflictNet

Dispute Resolution Services

California Association of Community Mediation Programs/Northern Section

Peninsula Conflict Resolution Center

Sacramento County Bar Association

San Mateo County Bar Association

Society for Professionals in Dispute Resolution/Northern California

Stanford Center on Conflict and Negotiation

State Bar of California/Middle Income Committee

United States Arbitration and Mediation

University of San Francisco, School of Law

1992 Public Flier to Institute Testimonial Immunity for Mediators

 

Your organization's support is requested for:

"THE TWO WORD AMENDMENT"

The people of the State of California do enact as follows: Section 703.5 of the Evidence Code is amended to read:

No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator OR MEDIATOR, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under subdivision (5) of Section 170 of the Code of Civil Procedure.

Background and Support

A statewide conference was held in January 1992, at Stanford Law School, under the auspices of over a dozen different bar associations, law schools, and dispute resolution organizations, on the issue of mediation confidentiality. The central proposal which emerged from this conference, first proposed by Mr. Charles Cooper, Regional Vice President of the American Arbitration Association, was to add the two words "or mediator" to Section 703.5 of the Evidence Code. This amendment has widespread support, including that of Dr. Robert Fellmeth, Director of the Center for Public Interest Law, a lead sponsor of S.B. 711 in 1991.

Integrity of Mediations

The intent is to protect the current right of California citizens to choose mediation, a non-adversarial dispute resolution process which depends on truth and good faith efforts at voluntary settlement. The amendment would address the rising number of cases where mediators are being subpoenaed to compel their later testimony about confidential good faith mediations. It would protect the integrity of mediations in the same manner as arbitrations.

The State of California's own mediations, under the State Mediation and Conciliation Service, have been afforded protection since 1949, because in the Service's words "It is essential to its role that confidentiality not only be maintained, but have no reason to be questioned."

Please copy and distribute this request.

Please send your organization's letters of support to:

Ron Kelly, Mediator
2731 Webster St.
Berkeley, CA 94705

Thank you.

1993 Article for California Manufacturer's Association

 

Why is the Legislature Suddenly So Interested in Mediation?

In the past two legislative sessions, there have suddenly been over a hundred bills introduced which would require or promote the use of alternative dispute resolution in every imaginable area. In the past two years, the legislature has passed legislation promoting mediation in all civil disputes, in misdemeanor criminal cases, in all local agency construction contracts, in the contracting for goods and services directly by the state, etc. Many in the manufacturing community are asking "What's going on? Why is this happening all of a sudden?"

You're a manufacturer who has to cut costs. If I say I can show you a process that only costs about a twentieth as much as the one you use now, AND on average yields more satisfying results, wouldn't you be interested? That's what's going on in the legislature. The state has to fund the court system. It has to fund CalTrans projects. It funds programs to resolve disputes in the marketing of agricultural products. Using mediation is extremely cost-efficient for any organization (including government) that's taking a hard look at the bottom line.

Just one example of the surprising shifts that are going on is that both the California Manufacturer's Association and the Center for Public Interest Law were early supporters of two recent bills. Two years ago these organizations were bitter foes in the area of tort reform. This year they joined early on in supporting A.B. 1757 and S.B. 401 which protected the integrity of the mediation process and promoted its use in civil cases.

Mediation is very different than arbitration. Any settlement you reach in mediation is a voluntary one. You keep control over the outcome because a mediator does not impose a settlement, the way an arbitrator or judge does. As a manufacturer, you can get a chance in mediation to talk directly with your customer or supplier. This is done in a legally confidential process designed to help you reach a voluntary agreement quickly and inexpensively. Only when you're satisfied with the resolution do you make it a binding agreement. And if you want to have an ongoing relationship with a state agency or your steady supplier or customer, the mediation process is far superior to escalating your dispute into a full-blown court battle.

A word of caution. An instrument is only as good as the person playing it. A process is only as good as the people involved. The California Dispute Resolution Council is an organization aimed at promoting sound public policy on alternative dispute resolution. With the rush to require ADR in a huge range of areas, this council of experienced providers of ADR services can help separate what really works from what just sounds good. As business people, you know the value of that real world experience. How the rules of procedure are written, and how mediators are chosen makes all the difference in success or failure.

This group will be very active in supplying information to the legislature, the courts, and the administrative branch in the coming years. The business community is invited to join the Council in its efforts.

1994 Invitation (Convening public conference on shaping ADR legislation)

 

RE: Newly enacted laws and pending bills on mediation, arbitration Invitation to August 4th discussion at BASF

Dear «salutation»,

Would you be willing to help inform the legal community about new laws regarding mediation? Would you be willing to copy and pass on the enclosed one page summary to interested members of the legal community that you know?

Last year I sponsored, and worked pretty hard to enact, legislation which expanded Evidence Code Sec. 703.5 to cover mediators (A.B. 1757). The new law protects the integrity of the mediation process by making mediators' testimony incompetent in any later civil proceedings (Family Court matters excepted). I was also actively involved in developing and enacting the legislation which significantly strengthened Evidence Code Sec. 1152.5 (S.B. 401). This now protects the confidentiality of all communications in mediation against discovery. Despite these new code sections, I'm still hearing about a number of cases where subpoenas are being sought for mediators' testimony and for their records. I'd appreciate your help in gaining wider awareness of the expanded Evidence Code sections.

I continue to be actively involved with several pieces of new legislation regarding mediation and arbitration. Are you, or people you know, interested in having an impact on any of the many pending bills that would affect ADR, or on the plans now being made for next year's legislative agenda? If so, I'd like to invite you and them to come to the upcoming program sponsored by the Bar Association of San Francisco. Would you be willing to copy and pass on the enclosed flier?

Representatives from most of the major provider organizations will be in attendance. The program will offer an opportunity to make your suggestions and comments directly to people who are active both with current legislation and in planning for next year's legislative efforts affecting ADR. The enclosed article describes some of the current legislative climate regarding arbitration, and issues that will be coming up more intensely next year. I hope that you, or someone you believe should be interested, will be able to come and give key legislators' aides the view from the real world.

Sincerely, Ron Kelly, Mediator

1994 Petition Requesting Support for Legislation Prohibiting Mediator Reports

 

Please copy and distribute

Protecting the Integrity of Mediation

Mediators Help People Agree ~ They Don't Write Findings Deciding Who's Wrong

Will you support legislative language to protect the integrity of mediation? The following model language was signed into law in one area of mediation (land use.) Will you support this same protection for any new proposed mediation legislation (except regarding Family Law Mediation)?

MODEL LANGUAGE: Government Code  66032. 

(e) A mediator shall not file, and a court shall not consider, any declaration or finding of any kind by the mediator, other than a required statement of agreement or nonagreement, unless all parties in the mediation expressly agree otherwise, in writing.

(f) Sections 703.5 and 1152.5 of the Evidence Code shall apply to any mediation conducted pursuant to this chapter.

(From SB 517 - Bergeson. Chaptered 7/21/94. Adds 66032 to the Government Code, relating to land use. Evidence Code Sections 703.5 and 1152.5 protect mediation confidentiality.)

Background on the Problem: Legislation is being proposed requiring mediators to decide which side is wrong, and write findings against that party for later use by judges (for example SB 517 before being amended). Government employees are gathering evidence to use later against the parties while they are "mediating" disputes (for example Consumer Service Representatives from the Department of Consumer Affairs.) Some mediators are coercing settlements by threatening to write adverse findings.

The undersigned supports inclusion of this model language in any proposed mediation legislation, except as it may apply to Family Court Mediation.

Signature                   Date

Please Print Name and Organizational Affiliation
Please Strike One : Signing as Authorized Representative OR For I.D. Purposes Only

Address                      Phone

Please return signed statements to: 2731 Webster St. Berkeley, CA 94705

Prepared 11/17/94 by Ron Kelly, Mediator/Arbitrator, solely in his capacity as a concerned professional.

1996 Article and Cite (Re purpose of Ev. Code section prohibiting mediator reporting - from email to Alan Weiner, Staff Counsel, Administrative Office of the Courts)

Dear Alan,

Great to talk with you today. I'm so glad that you and Heather are the ones grappling with these issues. I thought I would send you the reference I mentioned at CDRC now so I would get it to you timely. Following below is the reference. Also below is the article I wrote which the Law Revision Commission cited at footnote 13 in their discussion. Hope this is helpful.

Cite as: Mediation Confidentiality, 26 Cal. L. Revision Comm'n Reports 407 (1996) Excerpt below from pages 417 and 418: Source: http://clrc.ca.gov/pub/Printed-Reports/Pub193-MediationConfid.pdf

Mediator Declarations and Findings: Section 1152.6 Section 1152.6, enacted in 1995,[fn 12] provides in significant part: "A mediator may not file, and a court may not consider, any declaration or finding of any kind by the mediator, other than a required statement of agreement or nonagreement, unless all parties in the mediation expressly agree otherwise in writing prior to commencement of the mediation." Section 1152.6 is intended to prevent a mediator from coercing a party to settle by threatening to inform the assigned judge that the party is being unreasonable or is pressing a meritless argument.[fn 13] Section 1152.5 may not have accomplished this, because some courts had local rules stating that a party participating in mediation was deemed to have consented in advance to waive Section 1152.5 with regard to having the mediator submit an evaluation to the court.[fn 14]

[footnotes]

  • 12. 1995 Cal. Stat. ch. 576, Sec. 8.
  • 13. Kelly, New Law Takes Effect to Protect Mediation Rights, N. Cal. Mediation Ass'n Newsl., Spring 1996.
  • 14. See, e.g., Contra Costa Sup. Ct., Loc. R. 207 (1996).

[Contra Costa Superior Court, Local Rule 27 (1996) (" E A S E conferences shall constitute mediations governed by California Evidence Code Section 1152.5 except that, unless prior arrangements have been made with the Court in writing or on the record, by agreeing to participate in the E A S E program, the parties are deemed to have consented in advance that the evaluator may share any information he or she learns with the assigned judge and with other court personnel." source: CLRC Study K-401, 1st Supplement Memo 96-17, Exhibits page 17 (1996)]

New Law Takes Effect to Protect Mediation Rights by Ron Kelly , Mediator
 
"Mediators Help People Agree They Don't Write Findings Deciding Who's Wrong."

That was the headline of a request circulating last year in California regarding new mediation legislation. Perhaps you saw it and signed it. Over a hundred bar association leaders, mediation program directors, academicians, and others did so. Copies of these were delivered to every legislator authoring a mediation-related bill in the 1995 legislative session, and to numerous ADR interest groups around the state. The outcome of this and related efforts was that new sections were added to several of the state's codes. One of these is a new law chaptered as Evidence Code Section 1152.6. Effective on January 1 of 1996, it reads in full:

"1152.6 A mediator may not file, and a court may not consider, any declaration or finding of any kind by the mediator, other than a required statement of agreement or nonagreement, unless all parties in the mediation expressly agree otherwise in writing prior to commencement of the mediation. However, this section shall not apply to mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code."

Legislative Intent?

A description of the background and intent of the proposed new law was circulated by the Assembly Judiciary Committee. A quote from this part of the legislative history could be useful if you run into questions about the Legislature's intent. It reads:

"It will help insure that parties are free to speak truthfully to the mediator, because their rights cannot be prejudiced by what the mediator might later report or recommend, and because they cannot be coerced into a supposedly 'voluntary' settlement with threats of such reports."

Why Was This New Law Needed?

The protections which already existed in Evidence Code Section 1152.5 say that "all communications...in the mediation shall remain confidential" unless "all parties...in the mediation" agree otherwise. Why a new law requiring prior written consent for a mediator to file a report?

The answer should be clear when you picture yourself in this hypothetical problem. Your local superior court has set up a new civil court program providing for what they call "voluntary mediation". You have a case which you want to bring to court. The same judge who will be hearing your case, and all your pretrial motions, is now conducting your status conference. She tells you her court calendar is very crowded and you'd better try the court's "voluntary mediation" program. (Would you have any problem with this, so far?) You don't feel you can really refuse this "voluntary mediation" without it hurting how the judge sees your reasonableness and your case.

You go into "mediation" and the court-approved "mediator" listens to you and to the other side, both in joint sessions and in private individual caucuses. Then he brings you together and gives his evaluation about who should pay how much and why, based partly on what he heard in private. (Do you have any problems with this system, yet?) He strongly recommends that you both accept his proposed "voluntary" settlement. The other side immediately agrees. You believe it's completely unfair to you, and you say so.

When you refuse to accept the "mediator's" proposed solution, he tells you that he will write a secret report to the judge presenting his analysis of appropriate liability and damages, and even his recommendations on the motions you've said you want to file. He says the judge is quite busy and usually ends up pretty close to his recommendations anyway, so you'd be wise to accept the deal you're being offered. (Do you have any problems with this system, yet?)

When you still refuse, he caucuses privately with you. He intimates that in his secret report to the judge he intends to really slam one of the parties in this case. He suggests you'd really be taking a big chance going to court. You object strongly, saying you felt pressured into something you were told was a "voluntary mediation", and now you're being coerced into a "voluntary" settlement that you believe is absolutely unfair. You say you don't think this is really mediation.

The "mediator" smiles. He tells you he's very proud of his track record of settling cases for this court. He explains that the local court rules call what he's doing a mediation. He points out that this means that Evidence Code Section 1152.5 will prevent you from entering any of this into evidence. He explains that Section 703.5 will prevent you from calling him as a witness to question him about what the other side told him in private caucus. He also tells you that you must have overlooked the fine print in the local court rules. He points out where these rules say you are automatically deemed to have authorized the secret report he will write to the judge and to have waived your protections under 1152.5 to hold any such mediation documents confidential. You feel trapped. When he says it's your last chance to sign a memorandum accepting his proposed "voluntary" settlement, you reluctantly do so. You wonder what happened to your rights.

Do you see any problems with this hypothetical court program? If so, the biggest problem you may have is that it's not a hypothetical program. This is a description of the court rules and procedures in a real "voluntary mediation" program set up recently in one of the superior courts in California. The new statute was intended to steer such programs away from settlement coercion in any process called mediation. Overworked court systems are under a lot of pressure to set up coercive "mediations" like this, and new programs are being set up all over the state.

A Legal Definition of Mediation?

In 1993, the Legislature provided a clear definition of civil mediation, enacting SB 401 by Lockyer. "Mediation means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." (CCP 1775.1). Under SB 401, the Judicial Council was charged with writing state-wide court rules for civil mediation. It declined requests to limit mediators reporting findings. There is a very strong pressure between an overworked court and a mediator focused on her track record. This pressure will continue to drive the system to have "mediators" reporting their findings and maybe even passing on to judges false information they got in a private caucus with one side.

What's Our Responsibility?

In California we've set up a strong law providing parties the right to protect sensitive information they give to the mediator, through Evidence Code 1152.5. We've established that mediators can't later testify as witnesses against any party, through 703.5. Those of us who believe strongly in the voluntary resolution of conflict have a responsibility to be active guardians of the integrity of this confidential process. We have a responsibility to assure that mediation doesn't become another name for efficiently cheating people out of their rights with coerced settlements written in secret back room proceedings. The new law is intended as a step in this direction. It aims to prevent mediators from filing findings of any kind unless the parties want this and expressly agree to it in writing before the mediation starts.

"Mediators Help People Agree - They Don't Write Findings Deciding Who's Wrong." Now it's the law.

© 1996, Ron Kelly May be reprinted for personal noncommercial use.

Ron Kelly was the drafter and sponsor of the new Evidence Code Section 1152.6. He has played a central role in drafting and enacting many of the current state laws protecting the integrity of mediation and arbitration, including key sections of the California Evidence Code, Insurance Code, Government Code, Business and Professions Code, and others. Ron is a full-time professional mediator and arbitrator, specializing in construction and real property. His office is in Berkeley (510-843-6074)

[Source: CLRC Study K-401 Memo 96-17 Exhibits pages 2 and 3]

1997 Letter to the CA Office of Administrative Hearings

 

March 23, 1997

Ms. Margaret A. Farrow Coordinator, ADR Working Group
Office of Administrative Hearings - Gen. Serv.
501 J Street, Suite 230
Sacramento, CA 95814                                          Via Fax

RE: Proposed Draft Regulations Sec.1222 - Proposed Regulations on Use of ADR in Administrative Adjudication Proceedings

Opposed Unless Amended - Public Hearing Requested Unless Amended

Dear Ms. Farrow and Members of the ADR Working Group,

This letter is to follow up on discussions over the past two years with Mr. Nat Sterling of the Law Revision Commission in the formation of SB 523, and more recently with Ms. Cline, Mr. Croghan, and Mr. Balingit of the Department of Consumer Affairs Dispute Resolution Office, regarding mediation confidentiality, which would be undermined by your proposed regulation Sec.1222, Attendance at Mediation, as currently drafted.

"There is broad consensus that ... confidentiality is crucial to effective mediation." This quote, from the California Law Revision Commission's current report to the Legislature on the issue, is a clear statement of the importance of the parties in a mediation being able to speak freely. Additionally, your proposed regulation Sec.1226 attempts to establish solid confidentiality protections in administrative mediations.

Draft regulation Sec.1222 proposes a dangerous and subjective standard for later review by an adjudicative body of a party's statements and conduct in a mediation. As normally interpreted, this standard is in direct conflict with the confidentiality protections of Sec.1226. Mediation program directors in other states which have "good faith participation" requirements, such as Ms. Mary Alton in Minnesota, have referred to this requirement as "the bane of our existence".

Either you can speak freely and confidentially in a mediation, without your statements being used against you later, or you have to assume that you are actually speaking on the record. I don't believe that you want to require mediation participants to be constantly on guard, believing that any statement or conduct could potentially be used against them in a later hearing by an opposing party. A mediation participant would have to make this latter assumption if an opposing party can bring an accusation of their "failing to mediate in good faith" and of violating this draft regulation Sec.1222 according to an adjudicative body's later determination based on subjective standards.

I respectfully request that you simply remove the words "act in good faith" from the first sentence of this proposed regulation. Alternatively, I respectfully request that you add the following words at the end of the regulation:

"A participant's compliance with the requirement to act in good faith shall be gauged and reported solely on objective standards set prior to the mediation and noticed in advance in writing to the participants. Such objective standards may include a requirement that a participant appear personally, and/or remain for a certain period of time which is reasonable in relation to the size and type of dispute and which is specified prior to the mediation. No standard which requires subjective findings or reporting regarding any participant's statements or conduct in the mediation shall be used to evaluate compliance with this regulation."

I made a request last year to Ms. Farrow to discuss the issue of mediation confidentiality with your working group. I would still appreciate the opportunity to do so if this would help clarify the issue of conflict between confidentiality and "good faith participation" requirements. If you are unwilling to make changes to remove this proposed subjective standard of later review for a participants statements and conduct in mediation, then I must regretfully formally request that a public hearing be held on this regulation to further clarify what I believe to be a serious threat to the effective and ethical conduct of administrative mediations in California.

Please let me state clearly that the views expressed above are my own as a concerned professional in the field, and do not necessarily reflect the views of any organization with which I may be affiliated. Thank you for your consideration of this matter.

Sincerely, Ron Kelly, Mediator 2731 Webster St. Berkeley, CA 94705

cc: Mr. Nat Sterling, Calif. Law Revision Commission
Mr. Terry Croghan, Member, ADR Working Group
Mr. Albert Balingit, Department of Consumer Affairs
Mr. David Long, Director of Research, State Bar
Mr. Lani Bader, Golden Gate University School of Law
Mr. Dennis Sharp, President, California Dispute Resolution Council
Ms. Lauren Burton, Mediation Committee Chair, CDRC
Ms. Donne Brownsey, Legislative Advocate, CDRC
Mr. Chuck Cooper, Senior Vice President, American Arbitration Association

1998 Letter to CA Appellate and Supreme Courts

April 8, 1998

Hon. Ronald George, Chief Justice Supreme Court of California 303 2nd St. South Tower 8th Floor San Francisco, CA 94107

Hon. Robert K. Puglia, Presiding Judge Court of Appeal, Third District 900 N St. Room 400 Sacramento, CA 95814

Re: Request to Court of Appeal to Reconsider
Request to Supreme Court to Order Depublication
Court of Appeal Decision 3 Civ. CO25658 Kristen Rinaker v. Superior Court of the State of California, County of San Joaquin; The People of the State of California, and Christopher G. and Huy D. Minors, Real Parties in Interest

Dear Judge Puglia and Chief Justice George,

I respectfully request that the Court of Appeal issue a clarification assuring that its decision in the Rinaker case is not misinterpreted as an open invitation to compel not just mediators, but all those conducting dispute resolution proceedings to later in camera hearings and potential testimony and cross examination in civil cases. If it is so interpreted, it will widely undermine mediation as a means of reaching voluntary resolution in civil cases and potentially damage many other processes as well. If the Court of Appeal declines to modify its decision, I hereby respectfully and regretfully further request that the Supreme Court order depublication of the decision for the reasons stated below.

In this decision, the Court of Appeal correctly concluded that in this narrow circumstance,

"...due process of law entitles juveniles to certain fundamental protections of the Bill of Rights in proceedings that may result in confinement or other sanctions, whether the state labels these proceedings 'criminal' or 'civil.' ... A juvenile delinquency action is such a proceeding." "...the confidentiality provision of section 1119 must yield if it conflicts with the minors' constitutional right to effective impeachment of an adverse witness in this juvenile delinquency proceeding." [emphasis added]

The wording of the decision, however, also goes on to provide additional broad language potentially overriding state statute for purposes of witness impeachment in many other types of later civil proceedings. If left unmodified, this will have widespread and unintended chilling effects on disputants' rights to orderly and effective dispute resolution proceedings under law. In parts of the decision such as the following passage, many will see the decision as creating a general principle - that those the Legislature has charged with conducting dispute resolution proceedings may be compelled to testify later to impeach a witness in civil proceedings generally. "The minors' position finds support in California case law addressing other statutes which exclude or limit evidence on public policy grounds...[citations]... courts in civil cases have allowed impeachment with evidence ordinarily excluded on public policy grounds." [emphasis added]

The decision takes no notice of the essential purpose of California Evidence Code Section 703.5, nor of the Legislature's decision to uniformly prevent the testimony of all those conducting dispute resolution proceedings. 703.5 states clearly and simply the Legislature's intent that neutral dispute resolvers cannot give competent testimony in any subsequent civil proceeding (with limited exceptions as noted). This accomplishes a public purpose under state law which goes well beyond the narrow state purpose discussed and weighed in the Rinaker decision, which cites only "the interest in promoting settlements".

703.5 helps assure that all neutral dispute resolvers conduct a predictable and orderly process unbiased by personal concerns of later involvement.

Section 703.5 states, "No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under subdivision (5) of Section 170 of the Code of Civil Procedure."

The Legislature enacted 703.5 to enable judges, hearing officers, and arbitrators to better serve their very difficult roles as neutrals. It intended to enable them to conduct very charged proceedings in an orderly manner with the assurance that they would not be later subpoenaed and cross-examined about statements, conduct, or decisions, except in the narrow circumstances of the statute.

Please note that in 1993, California by statute deliberately classified mediators as being in the very same category as judges and others presiding at quasi-judicial proceedings serving this same essential public purpose. As the sponsor and drafter of AB 1757, which extended section 703.5 to cover mediators, I am familiar with the intent of the Legislature in enacting this legislation. The committee analysis prepared for the Assembly Judiciary Committee considering AB 1757 characterized 703.5 as providing "testimonial immunity" for the purpose of assuring the unbiased neutrality of persons conducting dispute resolution proceedings.

One of the few exceptions in 703.5 provides that a neutral conducting a dispute resolution proceeding may be compelled to testify in a later civil proceeding regarding a statement made in the prior proceeding if that statement itself could constitute a crime. While this exception might apply to a verbal threat to harm someone in the prior proceeding, it would not apply in the Rinaker case. If, as alleged by the minors, their accuser in the later juvenile delinquency proceeding did make a truthful statement in mediation, that he did not see who threw the rocks at his car, then this truthful statement did not constitute a crime.

The Rinaker decision seeks to follow and apply federal decisions which were generally related to the question before the Court of when constitutional due process guarantees must override clear state statute. The cases cited in the decision do not directly address mediator testimony. The Rinaker decision does not take notice of the Ninth Circuit decision in NLRB v. Macaluso which does speak directly to the issue of mediator testimony. The California Legislature definitely considered this decision in extending 703.5 to mediators. This decision stated that the "complete exclusion" of later mediator testimony was essential to mediation, and that the public interest in assuring access to confidential mediation was sufficient to "outweigh the interest in obtaining every person's evidence" (NLRB v. Joseph Macaluso, Inc. 618 F.2d 51 56 9th Cir. 1980).

I respectfully request that the Court of Appeal reconsider the wording of its decision to provide clearer guidance to trial courts about subpoenaing a neutral person who has conducted prior dispute resolution proceedings. The Court of Appeal has ordered that the trial court conduct an in camera hearing where it would determine if compelling the testimony of the mediator was really essential to assuring the accused's constitutional protections. I respectfully request that it consider issuing a clarification narrowing the wording of its decision, or requiring that a court conducting the in camera hearing make a determination roughly as follows before compelling mediator testimony:

"Evidence Code Section 703.5 helps assure the neutrality and independence of judges, arbitrators, mediators and others conducting quasi-judicial proceedings. It provides that they shall conduct such proceedings without concern they will be subpoenaed to testify in later civil proceedings on the same matter and compelled to testify for or against any party in the proceeding they conducted or about the conduct or decisions made in it. The Court finds that a mediator's testimony in the current case is so essential to prevent the potential miscarriage of justice through imprisonment of an innocent person that it outweighs the Legislature's purpose in enacting Section 703.5."

Evidence Code Section 703.5 embodies a much broader public purpose, and one more essential to justice and the public good, than the mere "interest in promoting settlement" identified and considered in the Rinaker decision. I urge the Court to acknowledge this in its decision. I urge the Court to assure that this public purpose is thwarted only in the very narrowest of circumstances where the interests of justice clearly demand preventing the imprisonment of an innocent person.

Respectfully submitted, Ron Kelly, Mediator 2731 Webster St. Berkeley, CA 94705

2000 Letter to Federal District and Appellate Court Rules Committees

(Opposing section of new Federal Court ADR rules
which would have made mediation confidentiality unpredictable)

January 14, 2000

Judge James Ware, Chair of the Rules Committee
U.S. Courthouse
280 South First Street
San Jose, California 95113

Re: Opposition to Proposed ADR Rule 6-11 (b)(5)

Dear Judge Ware and Members of the Rules Committee,

I must respectfully but strongly object to a section of the mediation court rules proposed. If adopted as proposed, the rules would mislead mediation participants into believing the rules protected the confidentiality of their mediation communications. In fact exception (b) (5) is so large it swallows Rule 6-11. If you were an honest attorney trying to explain this rule to a mediation participant, you would have to say "Everything's confidential - except if the judge later decides it shouldn't be."

You must make a hard choice. You can either a) provide clear and predictable protections for candor in mediation, or b) allow a later subjective decision by a judge to dissolve the protections and compel testimony about what was said and done in the mediation to support later claims of unenforceability and alleged breaches of a "legal norm" or "ethical duty".

Worse yet, under this proposed rule, some participants will falsely believe they may safely be candid with their mediator. They will later see their mediator testifying against them and disclosing their confidential mediation statements to a judge. Under this proposed exception, all protections will disappear when a judge later decides there's a good reason to toss them out. Participants will be justly outraged at this betrayal of confidentiality, as attorney and legal ethics expert Richard Zitrin was outraged when his mediator reported to the court in an effort to maintain a settlement (please see reference below).

I respectfully request that you either

a) delete proposed paragraph (b) (5) of ADR Local Rule 6-11, or

b) adopt an additional paragraph as follows:

6-11 (b) (6) Prior to any communications between a mediator and any participant, the mediator shall read the following statement to the participant, "Warning. You have the right to remain silent. I may later testify against you. Anything you say to me in mediation I may have to repeat in court, if the judge decides there's a good reason I should."

The Olam decision, cited in the proposed rule, indicates that Northern District federal judges must follow California law in the circumstances covered by (b)

(5) (A). As the sponsor both of the California legislation which made mediators incompetent to testify and of the legislation which specifically barred courts from considering any declarations of any kind by mediators under California law, I know the legislative intent and public policy choices made in enacting these laws. I have spent ten years actively involved in the formation of laws, court rules and administrative regulations protecting mediation confidentiality. I've discussed the difficult choices in this area of public policy with literally thousands of lawyers, judges, mediators, law school professors, and legislators across the country. If you want candor in mediation, participants must be honestly assured that their own words will not be used against them later, and that their mediator will not become a witness against them. Confidentiality must be predictable.

More Detailed Discussion, Olam Decision, and California Legislative History

The proposed District Court rules cite the recent Olam decision written by U.S. Magistrate Judge Wayne Brazil (cited as Olam v Congress Mortgage Company,

N.D. Cal. No C95-2608, October, 1999; 1999 WL 909731). The rules are virtually identical to the Model Local ADR Rule just issued by the Ninth Circuit December 1, 1999 which also cites the recent Olam decision. The distribution cover page indicates that Magistrate Judge Brazil also headed the Model Rule subcommittee which developed these rules.

Judge Brazil is reported to be a strong supporter of the use of ADR in the courts and a strong supporter of mediation confidentiality. The Olam decision states that federal judges must ignore their own court rules, and are bound to follow state law in deciding whether a mediator should testify about what happened in the mediation, when the enforceability of the settlement agreement is at issue (the subject of proposed rule 6-11 (b) (5) (A)). If it is this portion of the decision which is to be followed, then I applaud the decision to make mediation confidentiality protections uniform, regardless of whether an allegedly unresolved dispute goes on to be heard in a state court or is removed to a federal court. This would be an enormous benefit to the predictability of confidentiality, and therefore to the availability of effective mediation to the public.

California law is clear on this subject. Evidence Code section 1119 (a) states in relevant part that "No evidence of anything said... in the course of...a mediation...is admissible or subject to discovery, and disclosure...shall not be compelled, in any...civil action, or other noncriminal proceeding in which...testimony can be compelled". Section 1121 says "a court...may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator." Section 703.5 says "no mediator shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding." (Each has specific and limited exceptions, none of which apply in the Olam case.)

The Olam decision states:

Federal Rule of Evidence 501...appears to be applicable here. That provision, which was self-consciously crafted by Congress itself (rather than by a committee of the Judicial Conference), directs that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness ... shall be determined in accordance with State law." Defendants' motion to enforce the settlement agreement is a civil proceeding in which state law, and only state law, provides the rule of decision. The only question that motion raises is whether the parties entered an enforceable contract at the conclusion of the mediation--and the rule of decision for resolving this one substantive question will have only one source--the substantive law of the state of California...we conclude that even when a local rule adopted by a federal district court pursuant to Sec. 652(d) offers more protection to mediation communications than would be offered by the law of the state where the district court sits, the federal court must apply state privilege law when state substantive law is the source of the rule of decision on the claim to which the proffered evidence from the mediation is relevant.

Unfortunately, an article in this month's California Lawyer by Richard Reuben summarizes the contradictory outcome of the Olam decision all too well, "The law is simple and straightforward" yet..."the mediator was forced to testify despite the specific statutory bar on such testimony, and despite the unavailability of an applicable exception". In short, Judge Brazil found that he was bound to follow California law making a mediator incompetent to testify, and then he ordered the mediator to testify anyway, and based his decision in large part on the mediator's testimony.

The Olam decision specifically cites California Evidence Code Section 703.5, and states that "In construing and applying this statute, we endeavor to honor the purposes that drive it." Speaking in my capacity as the sponsor of AB 1757 by Caldera, the legislation that extended Evidence Code 703.5 to cover mediators, I believe Judge Brazil's decision to compel and consider mediator testimony absolutely failed to honor those purposes, and also the purposes of sections 1119 and 1121.

Several main points in the legislative history of current California law are important to understand.

1) In 1985 the California Legislature determined that the public interest was served by enacting separate and stronger protections for mediation communications than those already existing for settlement discussions under Evidence Code sections 1152 and 1154. In legislation sponsored by the California Law Revision Commission, it adopted Evidence Code section 1152.5 (AB 1030, McAlister).

2) In 1993 it then determined that the protections were not being observed fully enough by the public courts, and it revised and strengthened section 1152.5, and also enacted 703.5, extending what the Assembly Judiciary Committee analysis called "testimonial immunity" to mediators (SB 401, Lockyer, and AB 1757, Caldera).

3) In 1995 the Legislature determined that courts were still not observing the legislative intent of these sections and strengthened protections again, with the enactment of 1152.6 (through AB 1225 by the Assembly Judiciary Committee). One hundred and sixty-five Bar Association and ADR opinion leaders and academicians from all over the state signed statements in support of this legislation This time the Legislature spoke directly to the courts, adding for the first time the language "A court...may not consider any declaration or finding of any kind by the mediator". Speaking again in my capacity as the sponsor and drafter of 1152.6, the aim was to make the Legislature's intent unmistakable. A description of the background and intent of the proposed new law was circulated by the Assembly Judiciary Committee. It read in relevant part,"It will help insure that parties are free to speak truthfully to the mediator, because their rights cannot be prejudiced by what the mediator might later report or recommend..."

4) In 1996, the Legislature again extended the inadmissibility of mediation communications, this time to the intake process. 1152.5 was expanded to cover "mediation consultations" occurring before the mediation (SB 1522, Greene).

5) In 1997 it became clear that courts were still either 1) not understanding the legislative intent of these laws or 2) were understanding it and choosing not to follow it. The Legislature again, through the sponsorship of the California Law Revision Commission, unanimously enacted comprehensive further strengthening. It adopted the current Evidence Code sections 1115-1128 and unified mediation protections across seven different codes (AB 939, Ortiz). 1152.5 was redrafted as the current section 1119. I served as the expert advisor to the Law Revision Commission throughout the two year drafting and enactment of this legislation.

The prohibitions in section 1152.6 were expanded into the current section 1121. This time the Law Revision Commission expanded the prohibition to try to cover every conceivable label under which judges were admitting mediator's descriptions of what took place in the mediation. The prohibition was expanded to read "a court...may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator...unless all parties to the mediation expressly agree otherwise in writing..." This time it added clear legislative intent language. "A mediator's report to a court may disclose mediation communications only if all parties to the mediation agree to the reporting and all persons who participate in the mediation agree to the disclosure."

Predictable confidentiality is a key element of the process. "There is broad consensus that ... confidentiality is crucial to effective mediation." (California Law Revision Commission's report to the Legislature on the issue, 26 CLRC Reports 407, 1996). The State of California's own mediations, under the State Mediation and Conciliation Service, have had statutory protection since 1949, because in the Service's own words, "It is essential to its role that confidentiality not only be maintained, but have no reason to be questioned." (1985 statement from the Service to the Legislature as it was enacting Evidence Code Section 1152.5.) "There is universal agreement that settlement negotiations, and discussions during mediation, should be held confidential for all time." (The Consumer Attorneys of California August 7, 1998 letter to the California Law Revision Commission regarding its Study K-410)

As to further legislative history, excerpts from two items submitted and considered by the California Law Revision Commission in its hearings (from CLRC Study K-401, Memo 97-3), help explain in more detail exactly why the Legislature considered it so important to bar mediators from testifying or submitting declarations against any party in later proceedings.

Martin Fassler, Counsel for the Director of the Department of Industrial Relations which maintains the State of California's Mediation and Conciliation Service, specifically requested that 703.5 be extended to cover the state's own mediators. The Legislature did so in unanimously adopting the comprehensive revisions sponsored by the Law Revision Commission, and unifying mediation law across seven different codes. In his October 3, 1996 request to the Commission, Mr. Fassler cited the Ninth Circuit's own decision which concluded that "the complete exclusion of mediator testimony is necessary". He cites the decision in NLRB v. Joseph Macaluso Inc. as concluding that "the public interest in maintaining the perceived and actual impartiality of federal mediators does outweigh the benefits derivable from [the mediator's} testimony."

His letter explains the essence of the problem with allowing mediators to testify later against any party. "It is of central importance to each SMCS mediator that all parties view that mediator as an honest and effective neutral party with no inclination to share one party's perspective more than another party's or to favor one party's interests over those of another."

"In this context the adverse consequences of permitting testimony by a mediator in a legal dispute are apparent. Suppose that a union and an employer are adverse parties in a lawsuit or arbitration which turns on the interpretation of a provision in their collective bargaining agreement. Suppose Mediator Jones participates in mediation which led to the collective bargaining agreement.

"Suppose the union lawyer, believing that Jones' testimony will be of assistance in the presentation of her case, seeks to call the mediator as a witness. Suppose the employer attorney believes, conversely, that the testimony of the mediator will aid his cause, and for that reason raises no objection to presentation of the mediator's testimony.

"Suppose that Jones' testimony is more consistent with the testimony of the other union witnesses, and supports the union's version of events more than the employer's version of events. Suppose the union wins the suit or arbitration. and the employer loses. One likely result of this sequence of events is that the employer's negotiators and attorney, who believe that the mediator's testimony is not an accurate description of the events that occurred, will conclude that the mediator (1) has a faulty memory; or (2) misunderstood the negotiations taking place, in which he played a major role; or

(3) chose to testify in a way that would favor the union. Each of these conclusions reflects poorly on the mediator, and will result in a reduction of the level of trust which that party will have in the mediator in the future."

The Commission also considered a 12/30/96 Daily Journal article by a noted author and expert on legal ethics, Richard Zitrin. He describes his own experience when a mediator submitted a declaration to the court supporting the other side's motion. He states, "My jaw dropped open as I read the caption styled, as if to remove any doubt as to neutrality, "Declaration of [Mediator} in Support of Defendant's Opposition to Plaintiff's Motion"... In one single document this mediator managed to violate three basic precepts of mediation ethics...First, he violated his neutrality. Nothing is more important to a mediator that maintaining neutrality at all costs...Without it the entire process is jeopardized. Indeed, mediators are even called "neutrals"...Yet the mediator overtly took sides by drafting a declaration to be used by one side against the other..If there is any requirement more clear that the obligation of neutrality, it is the duty of confidentiality. This duty is so important that California has an Evidence Code Section, 1152.5, that ensures confidentiality over all documents, evidence, and "communications, negotiations, or settlement discussions." This should make it impossible for a mediator to use such communications as the basis for a declaration...Taking what he had learned in confidence and describing it to the court in any form, much less under oath in a sworn declaration, was a clear violation of confidentiality... [Third] all mediators have ego invested in the process, no matter how they may try to avoid it...He lost sight of the fact that neutrality and confidentiality can never be sacrificed to forge or maintain a settlement."

It is important to recognize that the Olam decision, in claiming to follow the logic of Rinaker, also undermines a separate essential purpose of California Evidence Code Section 703.5, and the Legislature's decision to uniformly bar testimony of all those conducting dispute resolution proceedings (with specific limited exceptions). This accomplishes a public purpose under state law which goes well beyond the narrow purpose discussed (and outweighed) in the Rinaker decision, which cites only "the interest in promoting settlements". 703.5 helps assure that all neutral dispute resolvers conduct a predictable and orderly process unbiased by personal concerns of later involvement in ongoing litigation.

Section 703.5 originally enabled judges, hearing officers, and arbitrators to better serve their very difficult roles as neutrals. The Legislature intended to enable neutrals to conduct very charged proceedings in an orderly manner with the assurance that they would not be later subpoenaed and cross-examined about statements, conduct, or decisions, except in the narrow circumstances of the statute.

In 1993, the California Legislature by statute deliberately classified mediators as being in the very same category as judges and others presiding at quasi-judicial proceedings serving this same essential public purpose. The committee analysis prepared for the Assembly Judiciary Committee considering AB 1757 characterized 703.5 as providing "testimonial immunity" for the purpose of assuring the unbiased neutrality of persons conducting dispute resolution proceedings.

The proposed District Court mediation rules also cite the Rinaker decision (Rinaker v. Sup. Court of San Juaquin 62 Cal. App. 4 155, 1998). This decision sought to follow and apply federal decisions which were generally related to the question before the Court of when constitutional due process guarantees must override clear state statute "in a juvenile delinquency proceeding". However, none of the cases cited in the Rinaker decision directly address mediator testimony. The Rinaker decision took no notice of the existence of Evidence Code section 703.5 or of the Ninth Circuit decision in NLRB v. Macaluso, which both speak directly to the issue of mediator testimony. The California Legislature definitely considered Macaluso in extending 703.5 to mediators. Again, the Ninth Circuit concluded that the "complete exclusion" of later mediator testimony was essential to mediation, and that the public interest in assuring access to confidential mediation was sufficient to "outweigh the interest in obtaining every person's evidence" (NLRB v. Joseph Macaluso, Inc. 618 F.2d 51 56 9th Cir. 1980).

Conclusion

There is a clear public policy reason why the Legislature unanimously choose to make the same decision as the Ninth Circuit did in the Macaluso case. Judges, and the lawyers who are before their courts, understandably see what previously happened in a mediation as potential evidence. They understandably resist the idea that the Legislature has tried to place evidence of mediation communications beyond their reach. They look at the courts as a truth-finding process. Ensuring that both sides get the benefits of every person's evidence is a vital function that they serve in the public justice system.

Judges, lawyers, and those throughout our court system, learn that justice comes out of contest. It comes out of the most fervent advocacy - with each side doing its best to get whatever evidence it believes will support it. But the public, and its elected lawmakers, look at this from a broader perspective. The Legislature says that it is in the public interest to be be able to speak openly not just to your lawyer, your gladiator in the coming court room battle. The Legislature aims to serve a broader purpose and to provide the public with wider options. That purpose is most consistent with democratic values. Those values are served when the parties are able to engage in a process where they themselves voluntarily determine the outcome - not a judge, not a court, not the government, saying who wins and who loses, but the parties themselves.

Mediation is such a process, in which the ultimate goal is self-determination. The American Bar Association Dispute Resolution and Litigation Sections, the Society of Professionals in Dispute Resolution, and the American Arbitration Association, have all jointly stated that "Self-determination is the fundamental principle of mediation." That basic right of the citizenry to determine the resolution of their own disputes is what the Legislature intended to protect.

It is a difficult public policy choice. On the one hand, ensuring a process in which parties can speak openly with their mediator, a peacemaker, who will help them come up with their own voluntary resolution. On the other, ensuring that when they go into an adversarial court battle, their lawyer, a gladiator who will be battling just for them, can have the fullest arsenal. It is often the case that the key piece of information which the mediator can use as a tool to achieve a voluntary agreement will be the very same piece of information that will become the crucial weapon in a later court battle, if the dispute remains unresolved.

The Legislature, recognizing this, made a clear and unequivocal public policy choice. Our lawmakers chose to protect the right of the citizenry to engage in a process based on self-determination, without fear that they would be creating further evidence by engaging in mediation. California's elected representatives decided that mediation would not be a place where you would go to create new evidence for the court battle. They did so in part because hundreds of bar association leaders, mediation program directors, mediators, university deans and professors, and interested organizations signed requests urging them to do so.

One such joint request submitted to the Legislature and dated 9/25/95 stated "It is essential that mediation participants be free to speak truthfully, without fear that their own words could be used against them later in an adversarial process" and that "Early voluntary resolution of conflict is both cost-efficient and most consistent with democratic values. Mediation enables people to retain their own decision-making power. It is appropriate for government to promote the informed use of mediation, and to ensure full and equal access to mediation services."

The California Legislature heeded their request, and chose to follow those principles consistently over a dozen years of developing our current protections. I urge the District Court to do the same. I respectfully request that the District Court Rules Committee delete proposed paragraph (b) (5) of ADR Local Rule 6

11. By copy of this letter I further respectfully request that the Ninth Circuit withdraw its Model Local ADR Rule dated December 1, 1999 and reach out to the mediation community for more dialogue on this Rule for all the reasons cited above. I respectfully request that both the Northern District and the Ninth Circuit Courts explore every mechanism to reverse the damage already done to the citizenry's ability to safely choose confidential mediation as an initial step in trying to resolve disputes voluntarily.

Thank you for the opportunity to comment. I would welcome a call or email from any judge or staff member of either court, and most especially from Judge Brazil, to further discuss these issues.

Sincerely,

Ron Kelly, Mediator
2731 Webster St.
Berkeley, CA 94705

cc: Hon. Dorothy W. Nelson, Ninth Circuit ADR Committee
Hon. Wayne Brazil, U.S. District Court
Mr. Nat Sterling, California Law Revision Commission
Mr. John Seitman, California Dispute Resolution Council
Ms. Dana Curtis, Bar Association of San Francisco Mediation Committee
Mr. Richard Collier, Bar Association of San Francisco Mediation Committee
Mr. Dennis Sharp, Society of Professionals in Dispute Resolution
Mr. Chuck Cooper, American Arbitration Association

2003 Letter to California Administrative Office of the Courts
Re complaints against mediators on court panels

 

March 13, 2003

Mr. Alan Wiener, Attorney Office of the General Counsel
Administrative Office of the Courts Southern Regional Office
2233 North Ontario Street, Ste. 100
Burbank, CA 91504                                                        via email

Dear Alan,

As you know, I was the sponsor of the legislation which extended Evidence Code Section 703.5 to cover mediators, and also served as expert advisor to the California Law Revision Commission in its development and drafting, as sponsor, of Evidence Code Sections 1115-1128. As you attempt to be clear about the documented legislative intent and history of Evidence Code Sections 11151128, as they relate to the courts' task of designing "procedures for receiving, investigating, and resolving complaints against the mediators who are on the court's list or who are recommended, selected, appointed, or compensated by the court" under Rule 1622, I respectfully request that you consider the following statements and quotes.

Selected quotes from California Law Revision Commission Official Comments to sections 1115-1128:

1119 Comment. Subdivision (a) of Section 1119 continues without substantive change former Section 1152.5(a)(1), except that its protection explicitly applies in a subsequent arbitration or administrative adjudication, as well as in any civil action or proceeding. See Section 120 ("civil action" includes civil proceedings). In addition, the protection of Section 1119(a) extends to oral communications made for the purpose of or pursuant to a mediation, not just oral communications made in the course of the mediation.

1120 Comment. Similarly, mediation participants may express their views on a mediator's performance, so long as they do not disclose anything said or done at the mediation.

1121 Comment. A mediator's report to a court may disclose mediation communications only if all parties to the mediation agree to the reporting and all persons who participate in the mediation agree to the disclosure. See Section 1122 (disclosure by agreement).

1122 Comment. Agreement must be express, not implied. For example, parties cannot be deemed to have agreed in advance to disclosure merely because they agreed to participate in a particular dispute resolution program.

From California Law Revision Commission Memo dated August 13, 2002:

In its current form, the Annual Report states: A Comment indicates the derivation of a section and often explains its purpose, its relation to other sections, and potential issues concerning its meaning or application. The Comments are legislative history and are entitled to substantial weight in construing the statutory provisions. fn17

17. E.g., People v. Martinez, 22 Cal. 4th 106, 129, 990 P.2d 563, 91 Cal. Rptr. 2d 687, 704 (2000); Van Arsdale v. Hollinger, 68 Cal. 2d 245, 249-50, 437 P.2d 508, 511, 66 Cal. Rptr. 20, 23 (1968); Catch v. Phillips, 73 Cal. App. 4th 648, 654-55, 86 Cal. Rptr. 2d 584, 588 (1999). See also Milligan v. City of Laguna Beach, 34 Cal. 3d 829, 831, 670 P.2d 1121, 1122, 196 Cal. Rptr. 38, 39 (1983); Juran v. Epstein, 23 Cal. App. 4th 882, 893-94, 28 Cal. Rptr. 2d 588, 594 (1994); Barkley v. City of Blue Lake, 18 Cal. App. 4th 1745, 1751 n.3, 23 Cal. Rptr. 2d 315, 318-19 n.3 (1993). The Commission concurs with the opinion of the court in Juran that staff memorandums to the Commission should not be considered as legislative history. Id. at 894 n.5, 28 Cal. Rptr. 2d at 594 n.5. Courts may also rely on the explanatory text of a Commission recommendation. See, e.g., Vournas v. Fidelity Nat'l Title Ins. Co., 73 Cal. App. 4th 668, 673 n.4, 86 Cal. Rptr. 2d 490, 493-94 n.4 (1999). In a recent case, the Supreme Court gave weight to a Commission recommendation, as the "opinion of a learned panel," even though the recommendation has not been enacted. Sierra Club v. San Joaquin Local Agency Formation Comm'n, 21 Cal. 4th 489, 502-03, 981 P.2d 543, 87 Cal. Rptr. 2d 701, 711-12 (1999). Commission Comments are published by Lexis Law Publishers and West Publishing Company in their print and CD-ROM editions of the annotated codes, and printed in selected codes prepared by other publishers. Comments are also available on Westlaw and Lexis.

Please consider this a formal communication to you in your capacity as attorney in the Office of the General Counsel for the Administrative Office of the Courts.

Yours,
Ron Kelly, Berkeley

2000 Amicus Brief, CA Supreme Court in Foxgate v Bramalea
Re prohibition on mediator reporting, and
providing legislative history of Ev. Code sections 1115-1128

IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT CASE NO. S087319

FOXGATE HOMEOWNERS ' ASSOCIATION, INC.

Plaintiff and Respondent,

vs. BRAMALEA CALIFORNIA, INC., et al.,

Defendants and Appellants

After a Decision by the Court of Appeal

Second Appellate District, Division 5 Case Number: B124482

REQUEST FOR LEAVE TO FILE AMICUS CURIAE BRIEF;
AMICUS CURIAE BRIEF FILED ON BEHALF OF RON KELLY, MEDIATOR

JOEL ZEBRACK (Bar No. 34870) Attorney at Law and ADR Services Provider
1430 Franklin Street Suite 205 Oakland, CA 94612-3209
510-763-1615 FAX: 510-763-1617
Attorney for Amicus Curiae
 

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT:

Pursuant to California Rule of Court 14 (b), Ron Kelly respectfully requests permission to file the attached Amicus Curiae Brief.

Mr. Kelly appears in his individual capacity as the original source and drafter of the main code sections which exclude consideration of a mediator's report under California law. He was the source and drafter of AB 1757 by Caldera, which made a mediator's testimony incompetent under Evidence Code Section 703.5. He was the source and drafter of Evidence Code Section 1152.6, in effect at the time of the underlying trial in the matter now before the Court. This section bars the making and consideration of a mediator's report to a court. Mr. Kelly initiated the formation of the current comprehensive Evidence Code chapter which defines and governs mediation, Chapter 2, Division 9, Sections 1115-1128. At the request of the California Law Revision Commission, Mr. Kelly acted as the Commission's expert advisor in the drafting and enactment of this chapter. This includes the former section 1152.6, now strengthened and revised into the current section 1121, which the Court of Appeal decision seeks to interpret.

Mr. Kelly has been a practicing mediator for more than fifteen years. He regularly trains lawyers and business professionals in mediation practice, law and ethics, through UC Berkeley Extension and through bar associations and mediation organizations throughout the state. His quick reference guides to California mediation law are routinely used by court systems, universities, and mediation organizations throughout California, including the Los Angeles County Superior Court, the trial court is this case. He was one of the founders of the California Dispute Resolution Council. He has been an active participant in the formation of the laws, court rules, regulations, professional organizations and educational programs which have shaped the field of mediation in California, and is deeply committed to preserving the integrity of the mediation process.

Mr. Kelly is convinced that the Court's decision in this case will profoundly impact the developing field of mediation not only in California, but throughout the country. He does not have an interest in, nor does he support either side in this case. He has thoroughly read the Court of Appeal decision and the briefs and reply briefs in this case and believes this submission is necessary. Because of his central role in the drafting and enactment of the statutes in question, he believes he can help the Court accurately understand the legislative intent which the Court of Appeal decision seeks to interpret. Mr. Kelly is also actively involved with the current drafting of the Uniform Mediation Act, which contains a proposed uniform statute drawn directly from California Evidence Code Section 1121. He believes the Court's decision interpreting this statute will significantly impact this Uniform Act and therefore likely influence the laws of dozens of states.

Appellants' reply brief was filed on November 13, 2000. This application and the attached proposed brief are therefore timely under Rule 14 (b). Copies of the attached brief and this application have been served on the Trial Court, Court of Appeal, and all parties to the case as required. The undersigned therefore respectfully request that the attached brief be accepted for filing.

Dated December 13, 2000

Respectfully submitted,
Ron Kelly, Amicus Curiae
Joel Zebrack, Attorney for Amicus Curiae

TABLE OF AUTHORITIES

CASES                                                                                                              PAGE

Brian W. v. Superior Court (1978) 20 Cal 3rd 618, 623......................................................................................4

Foxgate Homeowners' Association v. Bramalea California, Inc., (2000) 78 Cal.App. 4th 653,663......................................................2, 4, 9

Garstang v. Cal Tech (1995) 39 Cal .App.4th 526....................................10

NLRB v. Joseph Macaluso, Inc.(1980) 9th Cir. 618 F.2d 51, 56.....................................................16

Olam v. Congress Mortgage Co. (1999) 68 F Supp. 2d 1110, 1131-33 N.D. Cal..................8

Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1334, fn. 1..................................11

CALIFORNIA LAW REVISION COMMISSION REPORTS

Report of the California Law Revision Commission on Chapter 772 of the Statutes of 1997, Comments to Evidence Code Section 1115..................................................4

Report of the California Law Revision Commission on Chapter 772 of the Statutes of 1997, Comments to Evidence Code Section 1121............................................4, 14

Report of the California Law Revision Commission on Chapter 772 of the Statutes of 1997, Comments to Evidence Code Section 1122..................................................6

Report of the California Law Revision Commission to the Legislature Recommending Adoption of AB 939 Ortiz, 26 CLRC Reports 407, (1996)..............................................7

STATUTES PAGE

Code of Civil Procedure Section 657 .........................................................14
Evidence Code Section 703.5 .....................................................................12
Evidence Code Sections 1115-1128..........................................2, 3, 9, 13, 18
Evidence Code Section 1115.....................................................................1, 4
Evidence Code Section 1117.........................................................................9
Evidence Code Section 1119.................................................................10 ,13
Evidence Code Section 1121.....................................2, 3, 4, 9, 10, 11, 13, 15
Evidence Code Section 1122...................................................................5, 11
Evidence Code Section 1128.......................................................................14
Evidence Code Section 1152 ......................................................................11
Evidence Code Section 1152.5....................................................... 11, 12, 13
Evidence Code Section 1152.6..............................................................13, 14
Evidence Code Section 1154.......................................................................11
Government Code Section 66032 (e)..........................................................12

RULES AND REGULATIONS

California Code of Regulations, Title 1, Division 2, Chapter 3, Articles 1, 2 and 3, Section 1200 et seq, effective July 1, 1997.................................................15

U.S. District Court, Northern District of California, Local Rule Rule 6-11, Confidentiality, as Revised April 2000.................................................................................16

U.S. District Court, Southern District of California General Order No 387-A, Effective January 3, 2000.................................16

ASSEMBLY AND SENATE BILLS

Assembly Bill 46, Hauser, 1995.................................................................12
Assembly Bill 939, Ortiz, 1997..................................................................13
Assembly Bill 1005, Cortese, 1995............................................................12
Assembly Bill 1030, McAlister, 1985........................................................11
Assembly Bill 1225, Assembly Judiciary Committee, 1995......................13
Assembly Bill 1454, Murray, 1995.............................................................12
Assembly Bill 1757, Caldera, 1993............................................................12
Senate Bill 401, Lockyer, 1993...................................................................12
Senate Bill 517 by Bergeson, 1994.............................................................12
Senate Bill 523 by Kopp, 1995...................................................................15
Senate Bill 882, Rosenthal, 1995................................................................12
Senate Bill 1522, Greene, 1996...................................................................13

OTHER

Cracks in Confidentiality, by Jason Hoppin, The San Francisco Recorder, March 14, 2000..........16

Model Standards of Conduct For Mediators , American Bar Association Dispute Resolution and Litigation Sections, Society of Professionals in Dispute Resolution, and American Arbitration Association, Joint Statement adopted 1994................................................17

Statement from the State Mediation and Conciliation Service to the Legislature, March 26, 1985...7

Letter from The Consumer Attorneys of California to the California Law Revision Commission, August 7, 1998, regarding its Study K-410...............................................7, 8

Mediation Confidentiality, Magistrate Judge Wayne D. Brazil, November 4, 2000, Southern California Mediation Association, Annual Conference Workshop (Tape)......................................................8, 9

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................i

I. INTRODUCTION AND SUMMARY.............................................................1

II. CREATING A NEW EXCEPTION TO SECTION 1121 WAS UNNECESSARY AND IN ERROR.......1

III. THE BAN ON MEDIATOR REPORTING IN EVIDENCE CODE SECTION 1121 WAS AN INTEGRAL PART OF ENACTING THE NEW CHAPTER UNIFYING MEDIATION STATUTES......................3

IV. THE LEGISLATIVE INTENT IS CLEARLY STATED..............................4

V. TO LAWFULLY DISCLOSE MEDIATION COMMUNICATIONS IN A LATER CIVIL PROCEEDING, ALL PARTICIPANTS MUST AGREE NOT ONLY THAT THERE WILL BE DISCLOSURE, BUT EXPRESSLY AGREE TO THE SPECIFIC CONTENT OF THE DISCLOSURE..................................................5

VI. REVIEW FOR GOOD FAITH DESTROYS CONFIDENTIALITY............7

VII. THE LEGISLATURE DID NOT INTEND TO PREVENT COURTS FROM CONTROLLING THEIR OWN PROCESSES......................9

VIII. PARTICIPANTS CAN AGREE TO NON-CONFIDENTIAL MEDIATION WHERE THE MEDIATOR EVALUATES AND REPORTS...................................................................................................10

IX. THE LEGISLATIVE HISTORY SHOWS THE DEVELOPMENT AND PURPOSES OF THE DIRECT BAN ON MEDIATOR REPORTING............11

X. REVERSAL CONSISTENT WITH DECISIONS BY THE CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS, THE U. S. DISTRICT COURT, NORTHERN AND SOUTHERN DISTRICTS OF CALIFORNIA, AND THE U.S. NINTH CIRCUIT COURT OF APPEALS............................15

XI. CONCLUSION.

 

IN THE SUPREME COURT OF CALIFORNIA

SUPREME COURT CASE NO. S087319

FOXGATE HOMEOWNERS' ASSOCIATION, INC.

Plaintiff and Respondent,

vs. BRAMALEA CALIFORNIA, INC., et al.,

Defendants and Appellants

After a Decision by the Court of Appeal Second Appellate District, Division 5 Case Number: B124482

REQUEST FOR LEAVE TO FILE AMICUS CURIAE BRIEF;
AMICUS CURIAE BRIEF FILED ON BEHALF OF RON KELLY, MEDIATOR

JOEL ZEBRACK (Bar No. 34870)
Attorney at Law and ADR Services Provider
1430 Franklin Street Suite 205 Oakland, CA 94612-3209
510-763-1615 FAX: 510-763-1617
Attorney for Amicus Curiae

I. INTRODUCTION AND SUMMARY

This case raises difficult questions of constitutional authority which can only be resolved by the Supreme Court. The evidence is clear that the Legislature deliberately intended to exclude consideration of any disclosure of mediation communications in a later civil proceeding except where all mediation participants expressly agree to the content of that disclosure. It is not enough that the participants may be on notice that reports will be submitted. It is not even enough for them to have agreed to participate in a court program where reports will clearly be made.

The evidence is also clear that in the absence of express agreement of the mediation participants, the Legislature intended to bar a mediator from submitting and a court from considering a report which explains reasons why the matter did not settle in mediation. The Court of Appeal decision reasons that the Legislature could not possibly have meant to do this because it would deprive the court of the ability to police its own processes. This brief will present evidence that the Legislature clearly did intend to do this. The relevant statutes are clearly drafted. The supporting evidence of legislative intent is unmistakably direct. The Supreme Court now has the opportunity to decide whether the intent of the Legislature will be upheld. This brief asks the Supreme Court to ensure that the public can continue to have access to confidential mediation, as a legally-protected process which promotes self-determination by citizens, as the Legislature intended.

II. CREATING A NEW EXCEPTION TO SECTION 1121 WAS UNNECESSARY AND IN ERROR

To achieve clear and specific societal purposes, does the Legislature have the authority to enact Evidence Code statutes creating exclusionary rules of evidence? Is the meaning clear in the key phrases in Evidence Code Section 1121, a mediator may not submit and a court may not consider ? The section was adopted by unanimous vote of the Legislature and signed by the Governor as an integral part of the new comprehensive code chapter defining and governing mediation (Chapter 2, Division 9, Sections 1115-1128 - all references below are to the Evidence Code unless otherwise stated).

This chapter in no way prevents a court from holding its own settlement conferences or authorizing a special master to issue orders, conduct hearings and settlement discussions, and report back to the court about them. The conflict with statute arises because the Court of Appeal decision states that Judge Smith was granted broad powers as the mediator... (emphasis added) (Foxgate Homeowners' Association v. Bramalea California, Inc., (2000) 78 Cal.App. 4th 653, 663). Both the Trial Court and the Court of Appeal insist on classifying Judge Smith as a mediator acting in accordance with the statutory evidenciary exclusions for mediation, and then construing the statutes to find that acting in this capacity as a mediator his reports did not violate the letter or intent of these laws. That is simply not accurate.

The Court of Appeal did not have to judicially create a new exception to Section 1121 to decide the appeal of sanctions before it. It could have decided that the direction to bring expert witnesses to a mediation was a clear order of the Special Master, that Bramalea disobeyed it, and that Judge Smith so reported to the Court in his capacity as a special master, not as a mediator. It could have ruled, as Presiding Judge Turner did in his concurrence, that the parties had agreed to a reporting, that no disclosure of mediation communications was necessary to establish the mere fact of failure to bring experts, and therefore the report conformed to the legislative intent of Section 1121. The Court of Appeal however, chose to reinterpret the Legislature's intent in creating this chapter. The Supreme Court has now thankfully decided to review this choice.

III. THE BAN ON MEDIATOR REPORTING IN EVIDENCE CODE SECTION 1121 WAS AN INTEGRAL PART OF ENACTING THE NEW CHAPTER UNIFYING MEDIATION STATUTES

The Legislature carefully crafted safeguards in designing an alternative dispute resolution system which was off-the-record and out of the public eye. The Legislature understood that without the clear statutory ban on mediator reporting, mediation risks becoming a dangerous means of depriving people of their due process rights in secret back room proceedings. Mediators commonly have extensive ex parte communications with each side in which they entrust the mediator with confidential information. The due process protections for mediation expressly included protections against the mediator using the results of these ex parte communications to influence a later adjudication by reporting to the court if the matter does not settle.

Fundamental fairness requires that a person be allowed to hear and rebut any statements made against him or her to the judge. A mediator may hear credible but completely false information in confidential caucus with one side, which the other side never gets to hear. The ban on mediator reporting ensures that the mediator's report is not a means of allowing this false information to taint the fairness of the judicial process.

The due process protections of Sections 1115-1128 also expressly barred mediator reporting to protect against settlement coercion in this off-the-record process. The Legislature never intended that the powers the Trial Court granted this Special Master be wielded in a confidential process shielded by this chapter. Evidentiary protections allowing people to speak freely in mediation and a ban on mediator reporting are two sides of the same coin.

IV. THE LEGISLATIVE INTENT IS CLEARLY STATED

The Court of Appeal's decision states The objective of statutory interpretation is to ascertain and effectuate legislative intent. (Foxgate, supra, 667) California courts have consistently found that "Explanatory comments by a law revision commission are persuasive evidence of the intent of the Legislature in subsequently enacting its recommendations into law." (Brian W. v. Superior Court (1978) 20 Cal 3rd 618, 623).

Both the letter of the law and the expressly stated legislative intent are clear. Section 1121 says Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator...unless all parties to the mediation expressly agree otherwise in writing... A mediator may report only whether a settlement was reached.

The evidence of legislative intent is completely clear for both Sections 1115 and 1121. Section 1115 defines who is a mediator under the newly created chapter. The Legislature, through its Law Revision Commission, went out of its way to state its intent in this section that Any person who meets the definition of ˜mediator' must comply with Section 1121 (mediator reports and communications), which generally prohibits a mediator from reporting to a court or other tribunal concerning the mediated dispute. (Report of the California Law Revision Commission on Chapter 772 of the Statutes of 1997).

In barring mediator reporting, the legislative intent expressed in the Law Revision Commission Comments on Section 1121 is equally clear. It says the focus is on preventing coercion...a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decision maker on the merits of the dispute or reasons why mediation failed to resolve it. Similarly, a mediator should not have authority to resolve or decide the mediated dispute, and should not have any function for the adjudicating tribunal with regard to the dispute, except as a non-decisionmaking neutral. (Report of the California Law Revision Commission on Chapter 772 of the Statutes of 1997).

In Foxgate, supra, the mediator is reporting to the decision-maker regarding reasons why mediation failed to resolve the dispute and the Court is considering this report. The central question asked in the Court of Appeal decision is: Did the legislature intend to prevent mediators in civil cases from reporting to the court about why a mediation failed to resolve a dispute, and did the legislature intend to bar the court from considering this report? The answer is certain -yes it did.

In enacting the provisions of Division 9 of the Evidence Code, our elected representatives have determined that there are entire categories of evidence which are not to be considered in the court process for public policy reasons. But nowhere else in the Evidence Code has the Legislature gone to such lengths to specifically and directly address the court itself and to use the clear additional phrase a court or other adjudicative body may not consider .

V. TO LAWFULLY DISCLOSE MEDIATION COMMUNICATIONS IN A LATER CIVIL PROCEEDING, ALL PARTICIPANTS MUST AGREE NOT ONLY THAT THERE WILL BE DISCLOSURE, BUT EXPRESSLY AGREE TO THE SPECIFIC CONTENT OF THE DISCLOSURE

The Legislature clearly specified the requirements for disclosure of mediation communications. Section 1122 (a) states in relevant part
A communication or a writing, as defined in Section 250, that is made... or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if either of the following conditions is satisfied:

  • (1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.
  • (2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.

Note that to be admissible under paragraph (2) the communication must not disclose either statements or conduct. The intent is clearly explained in the Law Revision ˜s Comments following below, which explicitly state that participants cannot be deemed to have agreed in advance to disclosure merely because they agreed to participate in a particular dispute resolution program .

Comment. Section 1122 supersedes former Section 1152.5(a)(4) and part of former Section 1152.5(a)(2), which were unclear regarding precisely whose agreement was required for admissibility or disclosure of mediation communications and documents.

Subdivision (a)(1) states the general rule that mediation documents and communications may be admitted or disclosed only upon agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation (e.g., a disputant not involved in litigation, a spouse, an accountant, an insurance representative, or an employee of a corporate affiliate). Agreement must be express, not implied. For example, parties cannot be deemed to have agreed in advance to disclosure merely because they agreed to participate in a particular dispute resolution program.

Subdivision (a)(2) facilitates admissibility and disclosure of unilaterally prepared materials, but it only applies so long as those materials may be produced in a manner revealing nothing about the mediation discussion. Materials that necessarily disclose mediation communications may be admitted or disclosed only upon satisfying the general rule of subdivision (a)(1).

Mediation materials that satisfy the requirements of subdivisions (a)(1) or (a)(2) are not necessarily admissible or subject to disclosure. Although the provisions on mediation confidentiality do not bar admissibility or disclosure, there may be other bases for exclusion. (CLRC Report, supra, Comments on 1122)

The Commission was clear in the reasons it proposed this section.

The commission recommends...adding a section specifically addressing disclosure by agreement....All persons attending a mediation, parties as well as non-parties, should be able to speak frankly, without fear of having their words turned against them....Any agreement to disclosure would have to be express, not just implied. This requirement should help ensure the existence of true, uncoerced agreement, as opposed to mere acquiescence in a judge's referral to a court's mediation program. (California Law Revision Commission Recommendation, Mediation Confidentiality, 26 Cal. L. Revision Comm'n Reports 407, p.425, (1996))

The Report also makes the intent of revising Section 1152.6 clear that Where the parties properly agree to have the mediator report to the adjudicating tribunal, the mediator's report may disclose communication only if all persons who participate in the mediation agree to the disclosure. (Mediation Confidentiality, supra p. 427, fn. 36)

VI. REVIEW FOR GOOD FAITH DESTROYS CONFIDENTIALITY

The Law Revision Commission's recommendation to create the new Evidence Code chapter begins There is broad consensus that mediation is an important means of dispute resolution and confidentiality is crucial to effective mediation. (Mediation Confidentiality, supra, p413).

The State of California's own mediations, under the State Mediation and Conciliation Service, have had statutory protection since 1949 because in the Service's own words, It is essential to its role that confidentiality not only be maintained, but have no reason to be questioned. (Statement from the State Mediation and Conciliation Service to the Legislature, March 26, 1985, as it was enacting Evidence Code Section 1152.5, which first provided general mediation confidentiality.)

"There is universal agreement that settlement negotiations, and discussions during mediation, should be held confidential for all time." (Letter from The Consumer Attorneys of California to the California Law Revision Commission, August 7, 1998, regarding its Study K-410). The Court of Appeal decision would severely undermine party candor and authorize a dangerous and subjective after-the-fact review by an adjudicative body of a party's statements and conduct in a mediation to determine if they acted in good faith .

Respondent's brief to the Court of Appeal, submitted again as its brief to the Supreme Court, begins with the following statement of alleged fact. This appeal arises out of a sanctions award of $30,578.43 against defendants Bramalea Ltd. and Bramalea California Inc. and their counsel, Ivan K. Stevenson (appellants) for their failure to participate in a mediation in good faith.

At a recent workshop, Magistrate Judge Wayne D. Brazil explained clearly the devastating impact to the mediation process of a good faith requirement. Judge Brazil wrote the recent Olam decision holding that California's mediation statutes govern certain post-mediation actions in Federal Court (Olam v. Congress Mortgage Co., 68 F Supp. 2d 1110, 113133 N.D. Cal 1999). He played a key role in developing the Ninth Circuit's mediation program and coordinated the development of the Ninth Circuit's model mediation rules as co-chair of its ADR Committee Model Rule subcommittee. As Judge Brazil explained

I want to talk about whether, and I hope somebody makes this argument before the California Supreme Court, whether the law should permit judges to require people to participate in good faith in a mediation. I don't think they should

...What's wrong with good faith? First of all, it's like pornography. It's in the eye of the beholder. It's the most elastic concept I know in the law, and I've been wrestling with it for sixteen years in different contexts. What is good faith? Well,who knows? Now, that's dangerous. The elasticity of the requirement is dangerous. It threatens very important values like fundamental fairness. You need to know the rules before you start playing....

The other thing is that it distorts the role of the neutral. If I require you participants to proceed in good faith, and then Ron's my neutral, Ron all of a sudden is a judge and not just a mediator. He's a judge of behavior and conduct and motives. And he's spending his time looking behind conduct, trying to figure out the motives. Dead wrong for a mediator who calls him or herself really a mediator. If you want to be that, put on your black robe or at least go into an arbitration, certainly not a facilitative mediation.

You're not supposed to be a judge. It distorts you, and it distorts the people who appear before you, because they get afraid. They get afraid rightly, and they pull back. They retreat into formalism. They retreat into rigidity. They retreat into everything that's bad and self-protective about formal litigation.

(Mediation Confidentiality, Magistrate Judge Wayne D. Brazil, November 4, 2000, Southern California Mediation Association Annual Conference Workshop Tape, available from SCMA).

VII. THE LEGISLATURE DID NOT INTEND TO PREVENT COURTS FROM CONTROLLING THEIR OWN PROCESSES

The Court of Appeal decision considers Section 1121 and reasons that Because the Court would have no way of learning that its orders had been disobeyed or that some serious misconduct occurred which warrants judicial oversight, the Court would be stripped of its inherent power to police and control its own processes. (Foxgate, supra, p670)

The Legislature had no intention of preventing courts from controlling their own processes. Section 1117(b)(2) states plainly that the entire chapter (Sections 1115-1128) does not apply to court settlement conferences. A court settlement conference is not a mediation under this chapter. This mediation code chapter in no way requires courts to conduct processes under this chapter. What the Legislature did say was that where the evidentiary exclusions of this chapter do apply, and a candid, off-the-record process is conducted, then it is an integral protection for this process that the mediator may report only that the matter settled or it didn't.

VIII. PARTICIPANTS CAN AGREE TO NON-CONFIDENTIAL MEDIATION WHERE THE MEDIATOR EVALUATES AND REPORTS

As Judge Brazil points out, fundamental fairness requires that a mediation participant know the rules before engaging in the mediation. If mediation participants are told that everything is confidential they have a right to expect that this is accurate. The Court of Appeal has even found this expectation in a dispute resolution process to be constitutionally guaranteed. It determined that where the communications were tendered under a guaranty of confidentiality, they are thus manifestly within the [California] Constitution's protected area of privacy (Garstang v. Cal Tech (1995) 39 Cal .App.4th 526).

Mediation participants may reasonably expect they are protected by reading the plain words of Evidence Code Section 1119(c) All communications...by and between participants in the course of a mediation or a mediation consultation shall remain confidential. Mediation participants may reasonably expect they are protected from a mediator submitting a report of alleged bad faith conduct to the court by reading the plain words of Section 1121 Neither a mediator nor anyone else may submit to a court... any report, assessment, evaluation, recommendation, or finding of any kind by the mediator...

It is important to understand, however, that the Legislature carefully designed a system which did not ban non-confidential mediations. It did not ban mediations where the mediator will later report the mediator's own evaluations to the court. Participants are free to have mediations where nothing is confidential and the mediator evaluates the case and reports to the court.

The Legislature only set the default as non-reporting and confidential. It provided a clear and simple method of reversing that default. The parties can simply agree in writing before the mediation starts that they want reporting by the mediator, for the purpose of guaranteeing good faith behavior, or evaluating the merits, or any other purpose. If they so agree, then their fundamental rights to know the rules of the game before they start playing are preserved. That was the Legislature's intent. Sections 1121 and 1122 (a)(1) only require that the parties expressly agree to waive their protections. The Supreme Court can preserve that right by reversing the parts of the Court of Appeal decision being challenged.

IX. THE LEGISLATIVE HISTORY SHOWS THE DEVELOPMENT AND PURPOSES OF THE DIRECT BAN ON MEDIATOR REPORTING

The Court of Appeal decision cites the Mirror case as precedent in establishing the Court's power to interpret the mediation statutes to give effect to manifest purposes that, in light of the legislative history, appear from the provisions considered as a whole. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1334, fn.1). The following legislative history is intended to help the Court more clearly understand the manifest purposes of the statutes in question.

1) In 1985 the California Legislature determined that the public interest was served by enacting separate and stronger protections for mediation communications than those already existing, at the time, for ordinary settlement discussions under Evidence Code Sections 1152 and 1154. In legislation sponsored by the California Law Revision Commission, it first adopted Evidence Code Section 1152.5 (through AB 1030, McAlister). This began the consistent fifteen-year pattern of enacting exclusions of evidence of what happened in mediation, not as a privilege, but based on public policy reasons consistent with the numerous other exclusions in Division 9.

2) In 1993 the Legislature determined that the protections were not being observed fully enough. It further strengthened Evidence Code Section 1152.5 (through SB 401, Lockyer) by expressly extending the exclusions to apply in later discovery and all other civil proceedings, and by making other revisions. It also revised Evidence Code Section 703.5 (through AB 1757, Caldera), making a mediator incompetent to testify under the same section which already made judges and arbitrators incompetent to testify (with specified exceptions). Amicus Curiae was the sponsor of AB 1757, and initiated the meetings which developed the revisions to 1152.5 by SB 401.

3) In 1994 the Legislature first enacted the directly-stated ban on mediator reporting by enacting SB 517 by Bergeson (land use mediation).

This legislation created Government Code Section 66032 (e) which stated A mediator shall not file, and a court shall not consider, any declaration or finding of any kind by the mediator, other than a required statement of agreement or nonagreement, unless all parties in the mediation expressly agree otherwise, in writing. Amicus Curiae initiated the request to Senator Bergeson, Chair of the Senate Local Government Committee, to include this language and assisted in drafting the amendment.

4) In 1995 the authors of all mediation bills received petitions signed by over one hundred and sixty-five bar association leaders, mediation programs directors, law school professors and deans, and other organizations and individuals requesting that the newly-enacted language of Government Code Section 66032 (e) barring mediator reports be incorporated into all pending mediation bills. This language was then accepted by the Chair of the Assembly Housing and Community Development Committee, Dan Hauser, into his bill AB 46 (common interest developments), and by Senator Rosenthal, Chair of the Senate Insurance Committee, by the California Department of Insurance, and by Consumers Union, into their bill SB 882 (earthquake insurance), and by Assemblyman Cortese into his bill AB 1005 (water planning), and by Assembly member Willard Murray into his bill AB 1454 (gang violence prevention). Amicus Curiae drafted, circulated and presented these requests.

Rather than have this ban regarding reporting enacted into every separate mediation bill, Assembly Judiciary Committee staff recommended it be included in the Committee's omnibus bill. It was to apply to all mediations except Family Court Services mediations. A description of the background and intent of the proposed new law was circulated by the authoring Assembly Judiciary Committee. It read in relevant part,"It will help ensure that parties are free to speak truthfully to the mediator, because their rights cannot be prejudiced by what the mediator might later report or recommend... The language of Section 1152.6, in effect at the time of the underlying trial in this case, was adopted through unanimous passage of AB 1225 authored by the entire Assembly Judiciary Committee.

5) In 1996, the Legislature again extended the inadmissibility of mediation communications, this time to the intake process. Section 1152.5 was expanded to cover mediation consultations occurring before the mediation (through SB 1522, Greene).

6) In 1997 it appeared that courts were still either 1) not understanding the legislative intent of mediation exclusions or 2) were understanding it and choosing not to follow it. The Legislature again, through legislation sponsored by the California Law Revision Commission, unanimously enacted comprehensive further strengthening. It adopted the current Evidence Code chapter, Sections 1115-1128, and unified mediation protections across seven different codes (through AB 939, Ortiz). Section 1152.5 was redrafted as the current Section 1119. Amicus Curiae served as the expert advisor to the Law Revision Commission throughout the two years of drafting hearings and enactment negotiations in the Legislature.

The prohibitions in Section 1152.6 were expanded into the current Section 1121. This time the Law Revision Commission expanded the prohibition to try to cover every conceivable label under which judges were admitting mediator's descriptions of what took place in the mediation. Section 1152.6 was now expanded to read a court...may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator...unless all parties to the mediation expressly agree otherwise in writing...

This time the Legislature's drafting commission and sponsor added detailed legislative intent language

A mediator's report to a court may disclose mediation communications only if all parties to the mediation agree to the reporting and all persons who participate in the mediation agree to the disclosure. (Report of the California Law Revision Commission on Chapter 772 of the Statutes of 1997, Comment re 1121).

As of January 1, 1998, mediation law across seven different California codes was repealed, amended and unified into the new Evidence Code chapter. It governed mediation in the fields of civil actions, insurance, the environment, family, labor-management, community, administrative agency actions, etc. The chapter defined mediation and who could conduct it, provided new requirements for enforceable settlements, and prohibited mediator reporting and coercion. It changed admissibility and disclosure rules, and expressly extended protections into later arbitrations, court actions, and administrative hearings. The Legislature intended the carefully balanced package of all fourteen new code sections to function together. The Legislature was now so intent on excluding evidence of what happened in mediation that the final section of this new chapter, Section 1128, made any reference to a mediation during any subsequent trial grounds for declaring a mistrial under Section 657 of the Code of Civil Procedure.

X. REVERSAL CONSISTENT WITH DECISIONS BY THE CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS, THE U. S. DISTRICT COURT, NORTHERN AND SOUTHERN DISTRICTS OF CALIFORNIA, AND THE U.S. NINTH CIRCUIT COURT OF APPEALS

It may be worthwhile for the Court to consider related instances where the central issue in this case was examined and decided, by the California Office of Administrative Hearings, by the U.S. District Court, Northern and Southern Districts of California, and by the U.S. Ninth Circuit Court of Appeals.

Evidence Code Section 1121, by its own terms, applies not only to state courts but to other common adjudicative processes such as administrative hearings. In 1995, the Legislature adopted SB 523 by Kopp, sponsored by the Law Revision Commission, amending California's Administrative Procedures Act. Among other things it authorized most state agencies to adopt mediation programs. Pursuant to the requirements of this legislation, the Office of Administrative Hearings in 1996 proposed model regulations for the executive branch's conduct of mediation and later adjudicative hearings. It originally proposed an administrative regulation directly parallel to the Trial Court's order in this case which required everyone to make every best effort to cooperate in the mediation process. The proposed administrative regulation, Section 1222, would have required that The parties who enter the mediation process shall act in good faith and devote their energies to resolving the dispute..

The Office of Administrative Hearings made a decision to eliminate this sentence from the final regulation and enacted its ADR regulations without this requirement (California Code of Regulations, Title 1, Division 2, Chapter 3, Articles 1, 2 and 3, Section 1200 et seq, effective July 1, 1997).

Pursuant to the requirements of the 1998 Federal ADR Act, the US District Court for the Northern District of California in 1999 proposed a new Court Rule, ADR Rule 6-11 (b)(5), which would have made an exception to mediation confidentiality whenever anyone claimed there was a breach of a court order or even a violation of an ethical duty or legal norm. Amicus Curiae submitted a detailed discussion of the problems with this proposed rule (please see Cracks in Confidentiality , by Jason Hoppin, The San Francisco Recorder, March 14, 2000). The Northern District Court decided to eliminate the proposed rule (U.S. District Court, Northern District of California, Local Rule 6-11, Confidentiality, as Revised April 2000). The Southern District Court also adopted rules prohibiting the court from considering a mediator's report (U.S. District Court, Southern District of California General Order No 387-A, effective January 3, 2000).

The California Legislature considered, and followed, the U.S. Ninth Circuit's Macaluso decision in barring mediator testimony and reporting (NLRB v. Joseph Macaluso, Inc. (1980) 9th Cir. 618 F.2d 51, 56) The Ninth Circuit concluded that the complete exclusion of later mediator testimony was essential to mediation, and that the public interest in assuring access to confidential mediation was sufficient to outweigh the interest in obtaining every person's evidence (NLRB v. Joseph Macaluso, Inc.., supra )

XI. CONCLUSION

Perhaps some judges and lawyers see what previously happened in a mediation as potential evidence. They resist the idea that the Legislature has decided to place evidence of mediation communications beyond their reach. They look at the courts as a truth-finding process. Ensuring that both sides get the benefits of every person's evidence is a vital function that they serve in the public justice system, and in maintaining public confidence in the courts. Judges wish to sanction persons who do not obey their orders to participate in good faith in court-ordered processes.

The public, and its elected lawmakers, look at this from a broader perspective. The Legislature has determined that it is in the public interest to be able to speak openly not just to your own lawyer, your gladiator in the coming court room battle, but also to your mediator. The Legislature aims to serve a broader purpose and to provide the public with wider options. That purpose is most consistent with democratic values. Those values are served when the parties are able to engage in a process where they themselves voluntarily determine the outcome - not a judge, not a court, not the government, saying who wins and who loses, but the parties themselves.

Mediation is such a process, in which the ultimate goal is self-determination. The American Bar Association Dispute Resolution and Litigation Sections, the Society of Professionals in Dispute Resolution, and the American Arbitration Association, have all jointly stated that Self determination is the fundamental principle of mediation. (Model Standards of Conduct For Mediators , Joint Statement adopted 1994). That basic right of the citizenry to determine the resolution of their own disputes is what the Legislature intended to protect by creating a confidential mediation process.

It is often the case that the key piece of information which the mediator can use as a tool to achieve a voluntary agreement will be the very same piece of information that will become the crucial weapon in a later court battle, if the dispute remains unresolved. The Legislature, recognizing this, made a clear and unequivocal public policy choice. Our lawmakers chose to protect the right of the citizenry to engage in a process based on self-determination, without fear that they would be creating further evidence when engaging in mediation. California's elected representatives unanimously decided that mediation would not be a place where you could go to create new evidence for the court battle. They did so in part because hundreds of bar association leaders, mediation program directors, mediators, university deans and professors, interested organizations, and others learned in the subject, signed requests urging them to do so. Submission of these requests led the Law Revision Commission to begin the project which resulted in California's current comprehensive mediation code chapter, Evidence Code Sections 1115-1128.

The California Legislature heeded their request, and chose to follow those principles consistently over a dozen years of developing our current evidentiary protections. The Supreme Court is urged to uphold the Legislature's decision and support this important public policy.

Respectfully submitted,

Dated December 13, 2000

Ron Kelly, Amicus Curiae
Joel Zebrack, Attorney for Amicus Curiae

2013 Letter to Law Revision Commission
Suggesting initial draft of Evidence Code Section 1129
Requiring client’s informed consent (later enacted in 2018)

October 11, 2013

California Law Revision Commission
Attn: Barbara S. Gaal, Chief Deputy Counsel
4000 Middlefield Road, Room D-2
Palo Alto, CA 94303-4739

Re: Study K-402 on Mediation Confidentiality

Dear Commission Members and Staff,

Public Comments. Thank you for taking public comments at yesterday’s meeting. Two ideas proposed seemed to generate interest from Commissioners – 1) a required disclosure notice to clients describing certain risks, and 2) a requirement that attorneys consent to disclosure of mediation communications in later alleged misconduct cases combined with a requirement that the names and contact information of all mediation participants be collected to also get their consent if needed.

Framework for Potential New Statutes. If the Commission does decide to pursue these ideas, the two draft statutes below may provide a useful starting point for discussion and staff development.

The summary of current law in paragraph 1 of the proposed notice was drafted and circulated for public comment in 2005 by the Administrative Office of the Courts. The AOC originally proposed that this summary be provided to all mediation participants prior to mediation, but eventually withdrew this proposed requirement. Although withdrawn, it’s an excellent summary of current law.

The specific examples of risks and possible remedies in paragraphs 2 and 3 track points raised at yesterday’s Commission meeting, and prior extensive negotiations and compromises reached in the drafting of the earlier Evidence Code section 1152.5 (a)(5) in 1993 (enacted through SB 401 by Lockyer) and discussions in drafting the current section 1123 in 1996 by the Commission. Reference to these discussions is noted in the recent Commission Memorandum 2013-39, pages 5-8, and in the 1996 Commission Memorandum 96-86, Staff Draft Recommendations, Staff Notes, pages 21-22, regarding current section 1123 (at that time numbered 1128), “...if a representation made in a mediation induces assent to an agreement, the participant relying on the representation should have it incorporated into the written agreement.”).

The requirement for attorney consent to disclosure, and the requirement to request and retain the identities and contact information for all participants, combine Rule of Court 3.860 (which already applies to mediators) and the wording , as introduced, of AB 2025. Rule 3.860 was adopted by the AOC (effective January 1, 2006, and amended effective Jan. 1, 2007) and has governed all court-connected mediations since 2006.

Respectfully submitted,
Ron Kelly
2731 Webster St. Berkeley CA 94705

 

Draft Section 1129. Required Notice. An attorney representing a client for purposes of a mediation shall provide the following notice to her or his client prior to the mediation.

INFORMATION AND CAUTION ON MEDIATION CONFIDENTIALITY

1. Summary of California Mediation Confidentiality Law. To promote communication in mediation, California Evidence Code sections 703.5 and 1115–1128 establish the confidentiality and limit the disclosure, admissibility, and court's consideration of communications, writings, and conduct in connection with a mediation. In general, they provide:

a. All communications, negotiations, or settlement offers in the course of a mediation must remain confidential;

b. Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings;

c. A mediator's report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body; and

d. A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at or in connection with a mediation.

2. CAUTION. This means you cannot rely on statements made in mediation. They can’t be admitted in evidence in any later non-criminal proceeding UNLESS they are part of a written settlement agreement AND your settlement agreement is signed by all necessary parties and states that you want it to be an enforceable agreement (or words to that effect – see California Evidence Code section 1123).

3. Examples. You cannot rely on statements from the other side such as “You need to accept much less money that you believe is fair because I only have the following assets and would declare bankruptcy if we went to court” UNLESS you include this list of assets in your settlement agreement and make the accuracy of the list a condition of your settlement.

You cannot rely on statements from your own lawyer such as
“If you accept the proposed settlement, I (your lawyer) will reduce my legal fees by this amount” UNLESS you ensure this is included in your settlement agreement.

Draft Section 1130. Attendance Sheet and Agreement to Disclosure.

(a) An attorney representing a client for purposes of a mediation shall request that all participants in the mediation complete an attendance sheet stating their names, mailing addresses, and telephone numbers, shall retain the attendance sheet for at least two years, and shall provide it to the client on request.

b) An attorney representing a client for purposes of a mediation shall agree that mediation communications directly between the client and his or her attorney may be disclosed in any action for legal malpractice or in a State Bar disciplinary action, where professional negligence or misconduct forms the basis of the client's allegations against the attorney.

2017 Alert Re Proposed Commission Action to Weaken Confidentiality Protections

California Mediation Confidentiality Will End, Unless...

SAVE Mediation Confidentiality - Please Forward This

Mediation confidentiality in California will end on January 1, 2019...unless YOU take action now. The mediator's new opening statement will need to be:

Warning!
Anything you say in mediation you may be subpoenaed to repeat under oath
if any of the other parties later complains against their lawyer.
You may also have to turn over any confidential briefs or documents you create in mediation, and any texts or emails you send.

Do YOU care about our current right to choose confidential mediation? Do YOU care that very powerful forces are planning to take this away?

On average, for more that a quarter century I've donated several hours a week to creating, strengthening, and defending our current legal protections for mediation confidentiality. Now I’m asking YOU to dedicate just one day of YOUR time to save them. Please -

1. Call your State Senator and State Assemblymember. Ask the name of their aide in charge of Judiciary Committee matters. Ask their help. Tell your story. Ask them to tell the Law Revision Commission they oppose its pending bill to take away your right to choose a confidential mediation (Study K-402). Find your legislators' names, addresses, and phone numbers here and here .

2. Follow up in writing. Mail each one a hard copy letter. Emails to them are not kept as public record. Hard copy letters are.

3. Work to get any organization that you're a member of to write in opposition to the Judiciary Committee Chairs in the Assembly and Senate. The analyses that legislators get normally only list organizations, not individuals in opposition. Forward this to anyone who believes our current right to choose confidential mediation serves the public interest.

4. PLEASE send a copy of your letter (email is okay for them) to the California Law Revision Commission at . Please email me a copy at . That way I can ensure copies are provided to all members of the relevant legislative committees and commissions.

What happened? A majority on the current California Law Revision Commission is planning to recommend removing our current mediation confidentiality protections by adding a new Section 1120.5 to the Evidence Code. You can read their 156-page Tentative Recommendation here . The actual proposed bill starts at page 145. A majority of the Commissioners aim to take away your right to choose a confidential mediation. They think it’s more important that you be able to use mediation communications to later claim your own lawyer violated professional standards in your mediation, and that your lawyer be able to use them to defeat your claim.page1image39505280 page1image39510464page1image39512960

What it boils down to is this. The new section will remove our current legal protections in order to allow both a dissatisfied client, and her or his accused attorney, to later a) subpoena all opposing parties to produce their confidential mediation briefs, offers, admissions, potential resolutions and other electronic communications they sent to the mediator, and to b) subpoena all opposing parties to repeat later under oath what they and the mediator said in mediation, if the evidence is relevant to their later malpractice claims or defenses. The central problem is, as one former presiding judge put it, "Some judges will let nothing in. Some will let everything in. Some will end up in between. There's no way you'll know in advance." Who’s going to be candid in mediation if we lose our right to know we're talking off the record?

The Commission has not submitted their bill to the Legislature yet. They aim to submit it soon. By the time it gets a bill number, though, it may be too late to stop it. The Commission's recommendations nearly always become law eventually. Sadly, their proposal is also supported by the lobbying power of the Conference of California Bar Associations - even though the Conference voted to approve its Resolution 10-06-2011 supporting only a much more limited exception. That was to make admissible mediation “communications directly between the client and his or her attorney, only".

It's going to take all of us working hard to keep our current right to choose confidential mediation.

If you want to read the most balanced discussion of the issue I’ve seen, please read Lisa Zonder's Daily Journal article here , starting at page EX4. The letter to the Commission just before it on page EX3 also provides a good model for a letter directly to the Commission if you choose to write one.

Thank you for helping protect confidential mediation, Ron Kelly

2017 Follow-Up Alert Urging Action to Protect Mediation Confidentiality

They Want To Take Away Your Right
To Choose Confidential Mediation - Three Key Points

1. No Evidence This Change Is Needed. A basic threshold question asked of everyone submitting a bill to the Senate Judiciary Committee is as follows: "Please summarize any studies, reports, statistics, or other evidence showing that the problem exists and that the bill will address the problem." For many years, the Law Revision Commission staff, and many of the rest of us, have searched diligently for reliable evidence that lawyer malpractice in mediation happens frequently enough to justify weakening our current protections in all mediations. No reliable study, report, statistics, or similar evidence justifying this change has been found. Since the enactment of Evidence Code Section 1152.5 in 1985 (later expanded into the current section 1119), disputants in California have had the right to choose either confidential mediation or nonconfidential mediation. Before lawmakers take away this effective and well tested right they should require clear reliable evidence of a need for this change, and evidence that it will actually make things better not worse.

2. Mediations Vary Widely. Some Kinds Won't Change At All, But Some Kinds Will Be Severely Impacted. Some commercial mediators say no one ever tells them the truth anyway. The kind of mediations they conduct probably won't be affected much. But many of us conduct a different kind of mediation. These often involve family members, friends, coworkers, business partners, neighbors, and others with past personal or business relationships. As mediators, we have been able to help disputants reach better agreements, and reduce the damage they do to each other and their families and coworkers, because they have been able to entrust us with sensitive confidential information. Anyone who has wanted to conduct a nonconfidential mediation has always been able to do so with a single one sentence agreement signed by all participants. Current opponents of confidentiality might be asked how often participants have actually chosen a nonconfidential mediation when they have suggested this choice in their own mediations over the past 20 years.

3. Groups Of Mediators, Judges, And Mediation Users Have Come Out Strongly In Opposition Because They Understand The Damage. Since this proposal to weaken current protections was first introduced in the Legislature as AB 2025 in 2012, hundreds of opposition statements have been submitted. These include opposition from organizations like the State of California's own Mediation and Conciliation Service, California Judges Association, California Dispute Resolution Council, Southern California Mediation Association, Association for Dispute Resolution of Northern California, Contra Costa and Marin County Bar Associations, and Community Boards of San Francisco, as well as individual mediators from all sectors of practice ranging from the immediate past president of JAMS to former family law bench officers. (All available in "Public Comments" memos at ) For example:

a. The California Judges Association wrote in opposition explaining the adverse impact on their already unmanageable court caseloads. Sample quote:
"...it is the California Judges Association position that there exist no valid reasons, including the very rare claim of malpractice by an attorney during the mediation process, to justify an abrogation of the existing statutory confidentiality of the mediation process. It is simply too valuable to the civil court system in our state as a matter of public (and effective) policy to sacrifice that confidentiality."
(Exhibit 5 )

b. Likely the largest single collection of mediation users in the state - a united coalition of eleven major construction industry associations - wrote in opposition urging the Commission to adopt one of the many proposed alternatives that did not remove confidentiality protections. Sample quote:
"Eliminating confidentiality would not only reduce the effectiveness of mediation as a tool, it would completely destroy it."
(Exhibit 1 )

c. Even the State of California’s own State Mediation and Conciliation Service, mediating since 1949, felt they had to take the unusual step of writing in opposition. Sample quote:
"Were SMCS to lose the promise of absolute confidentiality...The result would be failed mediations and costly and disruptive labor disputes."

(Exhibit 7 )

*** The above statement on the California Law Revision Commission's proposed new Evidence Code section 1120.5 is a follow-up to my original alert dated 6/29/17. That alert describes the problem, and suggests the actions we will all need to take if we're going to head off this ill-advised pending legislation. If you have not yet read the original alert, please read it here and refer others to it .

Please copy, forward, and post both of these. Thank you - Ron Kelly, 8/11/17.

2018 Memo to Senator and Twenty Stakeholders
to facilitate stakeholder consensus on
mediation informed consent statute and recommend bill language

March 4, 2018
From: Ron Kelly
Re: Agreement on Ten Points at 3/2 Stakeholder Meeting on SB-954?
To: April Bird, Aide to Sen. Weickowski, and 20 stakeholder representatives

Dear April,

Would you be willing to circulate your notes on the SB-954 stakeholder meeting last Friday? According to my notes, there was general agreement on the following ten suggestions from:

1. State Bar (Randy) - a) Rather than requiring client’s consent, require disclosure and signed acknowledgement, b) Make attorney's failure to obtain signed acknowledgment express grounds for State Bar disciplinary action – Randy offered to assist author in drafting this

2. Judicial Council Civil and Small Claims Committee (Elizabeth Strickland) - a) Make attorney, not mediator, responsible for disclosure, b) Do not exempt businesses

3. California Lawyers Association (Saul Bercovich) - a) Allow attorneys to understand clearly how to satisfy minimum requirement – provide specified text at least as safe harbor if not required, b) Do not involve mediator as required recipient, guarantor, or witness, c) Specify that failure to make disclosure or obtain acknowledgment is not grounds to set aside mediated settlement agreement

4. Judicial Council (Heather Anderson) - Require disclosure early, not delayed until face-to-face mediation session – also noted 1119 doesn’t apply to court-conducted child custody mediations (see 1117(b)(1))

5. California Dispute Resolution Council (John Warnlof) - Focus bill narrowly, don’t expand scope – suggested specified text based on Fact Sheet language: "I (name) acknowledge that on (date), my attorney (name) informed me of the confidentiality restrictions described in Evidence Code Section 1119 including the restriction that a person who may wish to file a malpractice action against his or her attorney is prohibited from using any type of communication that occurred both in mediation and in preparation for mediation as evidence supporting his or her malpractice claim."

6. Committee Counsel (Christian Kurpiewski) - Make disclosure document specifically admissible, potentially grouped with similar exceptions in 1120 (b).

Did you hear general agreement on these ten points? Did I misinterpret? Did I miss another important point of agreement?

I did not hear general agreement on whether the bill should a) also include a specified summary of confidentiality statutes, or b) require Judicial Council to draft the required text, per the Association of Certified Family Law Specialist's suggestion, or c) leave wording to attorney discretion. I mentioned that if you decide to include a specified summary, in 2005 the Judicial Council already worked through 12 drafts to approve for public circulation the best plain English summary I've seen. This is section 4, draft form ADR-108 – except the word "conduct" is misleading and should be deleted per Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 (parties, but not mediator, may report mediation conduct). Text is below - only 130 words.

Best wishes, Ron

PS Please let me know this reached you

Summary of California Mediation Confidentiality Law. To promote communication in mediation, California Evidence Code sections 703.5 and 1115–1128 establish the confidentiality and limit the disclosure, admissibility, and court's consideration of communications, writings, and conduct in connection with a mediation. In general, they provide:

a. All communications, negotiations, or settlement offers in the course of a mediation must remain confidential;

b. Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings;

c. A mediator's report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body; and

d. A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at or in connection with a mediation.

2019 Article Explaining Origin of New Ev. Code Section Re Informed Consent

New California Law Requires Informed Consent to Mediation
by Ron Kelly

New Law. On January 1, 2019 a new California law took effect. It requires a lawyer to make sure their client understands the implications of California's legal protections for mediation communications, before the client agrees to mediation. If the client has already agreed to mediation before seeking counsel - by participating in a divorce mediation, or signing a contract with a mediation clause, for instance - then informed consent will be required as soon as possible after engaging counsel.

Senate Bill 954 by State Senator Bob Wieckowski added a new Evidence Code section 1129, and a new paragraph (a)(3) to the existing section 1122. The new section requires the attorney to obtain their client's signature on a separate printed disclosure form confirming the client understands the main code section providing mediation confidentiality, Evidence Code section 1119. The informed consent disclosure will need to be in the preferred language of the client. The new law specifies the contents of a sample form which attorneys can elect to use as a way to ensure they have complied with the new requirement (see subdivision d - full text of the new provisions is below.) The form includes a concise 87-word summary of Evidence Code sections 1115-1128 and 703.5. This summary was originally drafted by the Judicial Council in 2005, but never adopted until now.

Consistent Public Policy. For more than half a century, voluntary resolution of disputes has been favored California public policy, and considered most consistent with democratic values of self- determination. The Legislature enacted Labor Code 65, and Evidence Code sections 1152, 1154, and 1152.5, to promote and protect candid off-the-record settlement discussions. The choice to exclude evidence is always difficult and controversial. The protections in each of these sections were eventually eroded by later appellate court decisions. Then in the mid-nineties, the current Evidence Code chapter providing mediation confidentiality - sections 1115-1128 - was drafted and sponsored by the Law Revision Commission. Taking into account the steady weakening of these previous protections, and recognizing that only a tiny fraction of all disputes actually go to trial, the drafters intentionally limited exceptions and favored predictable protections for mediation participants. The Legislature unanimously approved the new chapter. It's been in effect and largely unchanged since 1998.

Supreme Court Decisions - Cassel. Five subsequent California Supreme Court decisions unanimously upheld this clear but difficult legislative choice - to exclude evidence of mediation communications in later trials. Each decision affirmed the intent to promote the wider public value of candor in mediated settlement negotiations. The last of these five decisions, the Cassel decision in 2011, held that mediation communications were not admissible even when a client was suing their lawyer for alleged malpractice.

Law Revision Commission Study. In 2012, the Legislature directed the Law Revision Commission to study the balance between mediation confidentiality and attorney accountability. After five years of conducting its Study K-402, and public input from hundreds of individuals and dozens of stakeholder organizations, the Commission approved its final recommendation and proposed legislation in late 2017. This would have significantly weakened existing protections. It would have allowed mediation communications to be subpoenaed and used in evidence by lawyers and clients in any later case which alleged lawyer misconduct or over-billing in a mediation context. It would have created the basis to subpoena all participants in the mediation to a) turn over their confidential briefs, offers, emails, and other written communications with the mediator, and to b) have to repeat under oath and cross-examination their oral mediation communications.

Overwhelming Opposition. Reviewing all public feedback, Commission staff explained in Memo 17-52, "The opposition to the Commission’s tentative recommendation can only be described as overwhelming." A stunning 32 of the 33 affected stakeholder organizations on record opposed the approach the Commission took (Source: http://www.clrc.ca.gov/pub/2017/MM17-52.pdf starting page 6). In a rare joint letter of opposition, the organized plaintiffs' and defense bars joined to explain "Confidentiality promotes candor, which in turn leads to successful mediation...and the use of mediation is critical to successful out of court resolution of disputes." (8/31/17 letter) Taken together, the stakeholder organizations on record in opposition represented mediation users, the courts, public agencies, lawyers, and mediators, with millions of hours of direct experience with mediations across all sectors.

Organizations representing the courts, the plaintiffs' bar, and the defense bar all pointed out that five years of Commission study had produced no reliable evidence that the problem identified happens frequently enough to justify the widespread public costs of making confidentiality unpredictable for those entering mediation. The California Judges Association warned the Commission that “mediators will now, if your proposal is adopted, have to provide an additional explanation to parties...that whatever they or their lawyers say in the process of mediation is no longer confidential...” (8/18/17 letter) The committee reviewing the proposed legislation for the Judicial Council stated its unanimous opposition. Due to this overwhelming opposition, no member of the Legislature would agree to carry the Commission's proposed bill in the 2017-2018 session. The choice to keep California's current protections seemed clear.

Alternative Approach. Senator Wieckowski still saw a need to be sure clients understood the implications of excluding mediation communications from later proceedings. He especially wanted to ensure that clients understood they could not use mediation communications if they later wanted to sue their lawyers. April Bird, the main aide handling this bill for the Senator, worked diligently with dozens of diverse stakeholder organizations around the state to craft a consensus bill that could be enacted. These included the State Bar, California Lawyers Association, Judicial Council, California Dispute Resolution Council, Conference of California Bar Associations, Consumer Attorneys of California, California Defense Council, California Judges Association, Consortium for Children, and many others. Drafting and redrafting the bill through four major amendments, the bill was eventually adopted unanimously by the Legislature and signed into law.

The central aim of the bill is summarized in the new sample form by the following sentence: "I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation." Most of the time, disputants do settle their disputes in mediation. They sign settlements, and are able to go on with their lives. An important provision in the new law (subsection e) makes clear that if one of the attorneys fails to obtain the required consent form, it might be grounds for disciplining that attorney, but it does not create a new basis to try to later overturn the parties' settlement.

Full Text of New Law. The new Evidence Code section 1129, and the new paragraph 1122 (a)(3), will read as follows.

1129. (a) Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.
(b) An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in subdivision (a).
(c) The printed disclosure required by subdivision (a) shall:
(1) Be printed in the preferred language of the client in at least 12-point font.
(2) Be printed on a single page that is not attached to any other document provided to the client.
(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.
(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a):

Mediation Disclosure Notification and Acknowledgment

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

• All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
• Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
• A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
• A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.

NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.

[Name of Client] [Date signed] [Name of Attorney] [Date signed]

(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.

[1122. (a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if any of the following conditions are satisfied:...]

(3) The communication, document, or writing is related to an attorney’s compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.

***********
Ron Kelly played a central role in crafting SB 954. He worked closely with Senator Wieckowski's office, the Assembly Judiciary Committee, and dozens of stakeholder organizations around the state. He had previously initiated and guided the formation of California's main Evidence Code chapter defining and governing mediation (sections 1115-1128). In 1996 and 1997, at the request of the sponsoring Law Revision Commission, he served as the lead expert advisor in drafting this chapter. Background on the formation of California's mediation laws is available at .

© 2018, Ron Kelly. Permission is granted to reprint and post this article as written.

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