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California Law Revision Commission

-- Last revised 8/3/16 --

Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct - Study K-402

    By concurrent resolution, the Legislature directed the Commission to analyze "the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct, and the purposes for, and impact of, those laws on public protection, professional ethics, attorney discipline, client rights, the willingness of parties to participate in voluntary and mandatory mediation, as well as any other issues the commission deems relevant." 2012 Cal. Stat. res. ch. 108 (ACR 98 (Wagner & Gorrell)).

The Legislature specifically requested that the Commission examine the following matters, among others:

(1) Evidence Code Sections 703.5, 958, and 1119 and predecessor provisions.

(2) California court rulings, including, but not limited to, Cassel v. Superior Court, 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437 (2011), Porter v. Wyner, 107 Cal. Rptr. 3d 653 (2010) (formerly published at 183 Cal. App. 4th 949), and Wimsatt v. Superior Court, 152 Cal. App. 4th 137, 61 Cal. Rptr. 3d 200 (2007).

(3) The availability and propriety of contractual waivers.

(4) The law in other jurisdictions, including the Uniform Mediation Act, as it has been adopted in other states, other statutory acts, scholarly commentary, judicial decisions, and any data regarding the impact of differing confidentiality rules on the use of mediation.

    The Commission has completed the background work requested by the Legislature and is now in the process of formulating a tentative recommendation. After the Commission approves a tentative recommendation, it will be posted to the Commission's website and widely circulated for comment. The Commission's decisions regarding this matter can be found under Meeting Minutes, below.

    The Commission welcomes input from experts, interested parties, and other sources, including, but not limited to, representatives from the California Supreme Court, the State Bar of California, legal malpractice defense counsel, other attorney groups and individuals, mediators, mediation trade associations, mediation parties, and other mediation participants. Although the Commission is interested in input from any knowledgeable source, it cautions such persons to be mindful of existing constraints on disclosure of mediation communications and materials. That is particularly important with respect to a mediated dispute that remains pending.

    In sharing information and views with the Commission, it is not necessary, and may be improper, to describe what happened at a particular mediation. Instead, comments that describe a situation in hypothetical terms, without revealing details that may disclose the identities of actual mediation participants, are preferable.

    For a brief description of the Commission's study process, visit this page. For more detailed information on the Commission and its study process, see the Commission's most recent Annual Report.

    If you have questions or comments on this study, please send an email to Barbara Gaal at bgaal@clrc.ca.gov.

Related Material


Meeting Minutes

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Staff Memoranda

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Additional Materials

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