The Irony of Mediation Confidentiality and Attorney Malpractice
By Mark Baer ESQ.
The California Law Revision Commission's desire to make an exception to mediation confidentiality for allegations of legal malpractice is fascinating and disconcerting to me for a great many reasons.
The statutes in question were enacted 18 years ago, in 1997.
In 2013, the California Supreme Court held that information covered by mediation confidentiality could not be used against an attorney in a legal malpractice case. It should be noted that there was no proof of legal malpractice in that case, merely an allegation. Since then, there has been a very strong effort to make an exception to mediation confidentiality when someone makes an allegation of legal malpractice. Note that anyone may allege anything at any time and that does not mean there is any validity to the allegation.
It's important to note that this issue had not been addressed by the Supreme Court prior to 2013 because the issue had not previously been before the court. In other words, we are talking about making an exception to mediation confidentiality for something that rarely occurs and merely based upon allegations, which are made all the time.
Interestingly enough, many states in the U.S. deem the failure of attorneys to advise their clients of alternatives to the litigation process to be legal malpractice. A great deal has been written about the cost (financial and otherwise) and harm caused by litigation. Meanwhile, the failure to advise clients in California about their non-litigation options to resolve their disputes is not considered malpractice.
In other words, the California Law Revision Commission wants to interfere with mediation confidentiality by creating an exception based upon the mere allegation of malpractice, but is doing nothing about the great many attorneys who harm their clients, interpersonal relationships, and society at large by failing to advise their clients of their non-litigation options to resolving disputes.
The Commission seems hell bent on creating this exception and is toying with whether or not there should be an in camera review of such information by judges before such information is released.
In camera reviews take a great deal of judicial time and the court budget has been cut immensely over the years because of the status of the economy. In fact, the California Supreme Court recently imposed such a duty on Prosecutors instead of judicial officers in criminal matters pertaining to possible exculpatory evidence.
In family law matters alone, only 1 in every 200 cases nationally go to trial. Thus, 199 out of every 200 family law cases nationally are ultimately resolved outside of court, through mediation or otherwise. Just imagine how many cases may require in camera reviews merely because of an allegation of attorney malpractice. If the judges bear that burden, how will that impact the administration of the already financially crippled court system.
Another option is for the party not alleging attorney malpractice to file motions in limine and motions for protective orders in order to keep their confidential information from being released.
It should be noted that the average cost of a divorce nationally is approximately $40,000.00. However, in California, the average cost of a divorce is more than double that - it is estimated to be between $90,000.00 and $95,000.00. Of course, that is due to the immense cost of litigation.
Also note that while we are referring to mediation confidentiality issues, the mediation may well have occurred in a litigated matter. People would be far better off attempting mediation or collaborative divorce before pursuing litigation because of the cost and destruction it causes. That brings us back around to the unfortunate reality that in California, the failure of attorneys to inform their clients of the non-litigation options to resolving their disputes is not considered legal malpractice.
As a result of the immense cost of divorce and the destruction litigators tend to cause to family dynamics, only between ten to fifteen percent of people involved in family law matters in California retain legal counsel. Nevertheless, if the mediation confidentiality exception is created and if the courts don't bear the cost of in camera reviews, the party not making the allegation of legal malpractice will bear the additional financial burden of filing motions to protect their confidential information from coming out.
Since court files are public records, once that information is out, it will become part of the court file for everyone to see.
On December 10, 2015, I attended the California Law Revision Commission's most recent hearing on the mediation confidentiality issue, as did a great many of my colleagues. Many of us spoke, including a couple of retired judicial officers. Other than the Commission members themselves, most of those in attendance were involved in the family law community. With one exception, everyone who spoke to the Commission explained the importance of mediation confidentiality and the harm that would be caused by making an exception based upon mere allegations of legal malpractice.
By the way, that one exception was Jeff Kichaven, who initiated this movement to make such an exception to mediation confidentiality and has been the force behind that movement. Considering that the focus of his mediation practice is insurance coverage and bad faith cases, I would have to assume that he has a very directive mediation style, also known as "evaluative mediation," something I address later in this article. Regardless, that style of mediation is more suitable for the types of cases he handles, as discussed in my article titled "How To Select The Best Mediator Is a Must Read for Everyone." In any event, it also bears mentioning that Mr. Kichaven acknowledged that the number of situations in which an attorney actually commits malpractice in a mediation is extremely small.
Along with several of my colleagues, I have sent the Commission a good deal of information. Some such information is reflected in Memorandum 2015-45 and Memorandum 2015-54, and its Second Supplement. Written comments made by others and Minutes of the Commission's meetings on this and other issues in 2015 can be found online.
When I spoke at the hearing, I discussed the fact that trust and safety are the most important essentials to collaboration and thus to mediation as well. If trust and safety are lacking, people will lack the comfort necessary to share certain information during mediation and such information is often key to resolving conflicts and disputes. The fear of such information becoming public as a result of an allegation of attorney malpractice by another party to the mediation negatively impacts that trust and safety.
I also mentioned that family law is not uniquely different from other cases involving family dynamics and interpersonal relationships. In fact, I informed the Commission members of my article titled "Litigation Should Come with a Warning" and the fact that the U.S. has already demonstrated its lack of concern for family dynamics and interpersonal relationships because of its focus of resolving disputes through an adversarial model. In fact, I mentioned a recent article titled "New govt likely to favour resolution over adversarial style." After all, handling disputes through an adversarial model actually exacerbates conflict and increases the distrust. This reality actually led me to write an article titled "The Greek Comedy We Call Litigation."
In addition, I mentioned a serious problem with opening up mediation confidentiality by a mere allegation of attorney malpractice by mentioning an experience I had several years ago, while presenting on mediation to a family law litigation study group. During my presentation, I told the attorneys that mentally competent people making informed decisions can agree on anything they want that is not illegal or otherwise in violation of public policy. After making such a statement, every attorney in the audience looked at me as if I were from Mars. They completely disagreed and told me that if they allowed their clients to agree to things that could not occur in a courtroom, they would be exposing themselves to malpractice. This false belief leads to lawyer paternalism, which is a serious problem, particularly in the field of family law. So, if a lawyer in a mediation allows his or her client to agree to something that is outside the realm of possibilities in a court of law, might that lead to an allegation of attorney malpractice and thereby open up the confidentiality of the mediation?
One of my favorite topics to discuss is the the fact that every human being has their own unique biases, beliefs, assumptions and values. Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences have to do with everything we experience in our lifetime, including people we befriend, schools we attend, courses we take, books we read, our sources of news, etc. Ultimately, our life experiences have very much to do with our personal choices in terms of what we do, if anything, to try and broaden our worldview.
In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement regarding bias: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]
The first article I wrote on the topic is titled "Judicial Bias - A Variable That Is Often Overlooked in Family Law Litigation." That particular article was later edited down as my Psychology and Family Law column for the San Gabriel Valley Psychological Association's newsletter and was titled "Judicial Bias in Family Court."
As a result of judicial bias, the type of confidential information that will be allowed out will vary from judge to judge.
I also discussed the distinction between settlement conferences that are referred to as mediation and true mediation. I have also addressed this issue in a great many of my articles and have written an article on just that topic as it pertains to mediation confidentiality, which is titled "Confusion of Terminology Is to Blame for the Mediation Confidentiality Debate in California." It bears mentioning that what lawyers tend to call mediation has been found harmful. However, who cares about that unfortunate reality? Certainly not the California Law Revision Commission because it has shown absolutely no interest in addressing that issue or calling it for what it is or should be - attorney malpractice.
Family law cases are considered the vampires of the legal field because of the win/lose dynamics created through litigation, litigated negotiation and "evaluative mediation." If creating vampires is not legal malpractice, I don't know what is!
Although I didn't have time to mention the distinction between "justice" and "legal justice," I had previously provided the Commission with an article I wrote on that subject.
In all seriousness, if the California Law Revision Commission were truly interested in protecting the public, they would be enacting legislation requiring attorneys to inform their clients of non-litigation options for resolving their disputes. I discussed this reality in great deal in my 7-part series of articles titled "How Family Law Attorneys Tend to Think," which was published in the Huffington Post.