December 22, 2015
In the Crosshairs: The Legislature is Poised to End Mediation in the State of California
About a decade ago I attended a lunch meeting in Contra Costa County with about 50 other area attorneys. The guest speaker, a mediator-attorney from down south and respected statewide, warned everyone in the room: If we as mediator-attorneys do not develop a mediation structure that protects our clients from malpractice eventually it will be done for us–and most likely be done badly. He meant his words to strike an ominous cord, but for most of us in the room our collective professional hubris left us in a haze of considering him a bit of a Chicken Little. Walking out the door, talking amongst ourselves, we tittered things like, “The Bar or State Legislature would never be so stupid as to try and redesign a conflict resolution process that is practiced, as is, all around the world in both common law and civil law jurisdictions. Oh, goodness, no. They would never do that. That would be….crazy.”
And today, in the face of our collective professional arrogance, the citizens of California are in jeopardy of losing one the most efficient and effective ways to resolve the conflicts of everyday life, mediation, at the hands of the Legislature’s Law Revision Committee whose members are currently planning to propose a new law which boils down to: “If a mediation client later asserts that attorney malpractice occurred during the process the confidentiality of the mediation is invalidated.” And just typing that sentence makes me think of hitting my head against my office desk in Charlie Browneque fashion and refusing to move until someone is able to get through to the Committee members that they have no idea what they are doing relative to mediation, legal processes, the legal system, and how to best protect people from malpractice.
Though, yes, to see this situation in its most positive light, the Law Revision Committee now has everyone up in arms about what to do for clients who end up in a compromised situation due to attorney malpractice during a mediation process, from the State Bar to non-attorney mediators like Ron Kelly. Yet, interestingly, the Committee members seem to be taking the reaction of collective horror to their ideas of how to address the situation as proof that they are doing good work to protect an innocent public. The Committee members’ attitude towards those vocalizing contrary views to their ideas smacks of: y’all wouldn’t be getting so upset unless you’re trying to shield a corrupt system that benefits you….or some other dark, disrespectful projection which validates them in essentially ignoring everyone’s entreaties that their ideas would not address those confined circumstances but instead destroy mediation as a process option, an option of immense societal usage and value.
So here we are all hanging in the balance at the eleventh hour before an event which would probably go unnoticed by most of us, coming into our lives without even a murmur, yet an event that would nonetheless drastically change our legal landscape and severely limit the services Californians have at their disposal to help them through the most difficult times of their lives. I am doing my part writing emails, talking to colleagues, and otherwise doing what I can to get the word out that we all have to ask the Committee members to stop, take a deep breath, and work with the Bar and non-attorney mediators, so that the Committee members do not just mindlessly destroy but instead create something new, a new mediation format, building on the positives that are the bedrocks of mediation, like confidentiality, but which also address the circumstances of attorney malpractice. If we could all convince the Committee members to do that it would create the opportunity for us to design a mediation structure which reflects the innovation which is a proud hallmark of California and Californians, and avoid the cultural cancer of ending mediation as we know it in the state.
If you want to let the Committee know that you would like mediation to stay a viable option for the resolution of conflict in California, please feel free to contact them with your own thoughts or use the template drafted by mediator Ron Kelly, below. Send your email to Barbara Gaal at: email@example.com and cc Ron, at his request, firstname.lastname@example.org, so he can track the professional and public outcry.
“California Law Revision Commission
c/o Ms. Barbara Gaal, Chief Deputy Counsel
Re Study K-402
I oppose the Commission’s decision to draft recommended legislation removing our current confidentiality protections when a mediation participant alleges lawyer misconduct. I will oppose this legislation if it goes to the Legislature and will urge organizations of which I’m a member to oppose it.
For thirty years our current right to choose confidential mediation and also to opt out of it has served the people and courts of California extremely well. Removing this right is a very radical change which should require solid evidence establishing a need. Dozens of alternative solutions have been suggested to the Commission to address the alleged problem without removing our confidentiality protections. I request you pursue these instead.
I urge you not to turn your back on the Commission’s own 1996 statement recommending our current statutory protections be enacted – “All persons attending a mediation, parties as well as nonparties, should be able to speak frankly, without fear of having their words turned against them.”
Sincerely, [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][You]”