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					        Comments from Respondents to the SCMA Survey on AB 2025
                             April 20112


Notes: Comments have been copied from the survey responses exactly as they were entered. Minor
typographic errors have been corrected for ease of reading. Entries were eliminated if they simply
referred to a previous entry with no specific content or way to identify which comment was referred to.

1. Mediation confidentiality must be preserved without further exceptions.

      The whole point of mediation is that it is confidential. Thus, allowing the parties to speak freely.
      Without this, people will be far more cautious and closed about what they say in a mediation. It
       becomes a less safe place.
      This proposed exception to confidentiality would destroy the process. This means that a lawsuit
       by one of the parties can then affect the other party's expectation of confidentiality as well.
      I do believe that the stronger the confidentiality protection, the more comfortable parties will be
       and accordingly the more likely to be able to become agreement-ready. But there could be
       circumstances which we may not foresee right now that might warrant an exception in the
       future.
      Your "don't care" option should really be "undecided." I am on the fence on this one. As a
       mediator, I have had a couple of situations where I felt the attorney was harming the client,
       either by not competently representing the client or by pushing an agenda that did not appear to
       be in the client's best interest. I found myself wishing for the represented party that they had an
       avenue to report the malpractice.
      Misconduct by a party's attorney should not be shielded from liability because of confidentiality.
       There are ways of creating appropriate exceptions for such conduct without damaging existing
       principles.
      At least given the current proposed exception.
      No one will talk to mediators if they believe the mediator will be required to testify for or against
       anyone.
      Mediation is instrumental in obtaining a resolution simply because of some of the important
       issues presented. Also, the LASC congratulated its mediators for successfully resolving over
       4000 cases in 2011.
      PRIVATE communications between client and attorney even if during the period of a mediation
       ought to be acceptable in a suit between client and attorney.
      I don't agree, disagree or "don't care." I don't think the law should ever been static - so I value
       confidentiality but to put down the draw bridge now and say there should never be an exception
       is a dangerous idea - it prevents the law from being a living, breathing, contemporary force in
       civil society

2. An exception for attorney malpractice is a necessary exception to mediation
confidentiality.

      My fear is that any exception to confidentiality could eventually completely cancel
       confidentiality.
      How can an attorney recommend a settlement in a confidential setting if doing so exposes the
       attorney to malpractice claims?
      Again, I am on the fence--I am undecided, but I DO care. An attorney's malpractice harms the
       public, and a client should have recourse regardless of the context in which the malpractice
       occurs.
      An attorney should never be allowed to use a legal technicality in defense of harming his or her
       client's interests - particularly in the Cassell circumstances.
      It's not that I don't care. If it were possible to have the exemption and not break confidentiality of
       the mediation then it may be a good idea. But how could the lawyer defend himself without
       getting into the data discussed in the mediation.
      Perhaps -- but I am not in favor of the exception as it is proposed.
      Sounds reasonable.
      it is a slippery slope! And I think the real issue may be the mediator not controlling the situation.
      Mediations are successful because of the confidentiality agreement.
      As in my comment above, this exception must be restricted to PRIVATE communications during
       the mediation but away from the presence of any other party including the mediator.

3. If an attorney malpractice exception is necessary, it should not sweep in statements
made or heard by the mediator, opposing parties, or opposing counsel, even if offered
to contradict or impeach.

      This question is not very clear...
      Sweeping in other parties' s and attorneys' statements invites gamesmanship and self-serving
       statements designed to put pressure on counsel.
      How can the attorney defend him/herself if the whole context is not provided?
      Undecided. This could get messy. Perhaps an alternate solution would be to require some sort
       of admonition to the represented parties to make sure they understand that mediation and the
       decision to settle is voluntary and rests with them, not their attorneys.
      All statements made by the mediator and opposing parties are confidential and should remain
       so.
      If there is to be an exception, then disclosure must be limited solely to communications between
       the party and his/her counsel--this would create an almost impossible task for a court. Perhaps
       some limited disclosure in a State Bar (but not court) hearing might be discussed
      The defendant atty. is entitled to due process and to defend himself.
      Agree. The exception ought to be only for privileged private communication between atty. and
       client.

4. An attorney malpractice exception to mediation confidentiality should allow
mediators, opposing counsel, and opposing parties to be subpoenaed, deposed, and
questioned at trial about the mediation.

      any party can then use the mediation process to prolong litigation for everyone. How horrible.
      "Don't care" means "undecided." Slippery slope. Perhaps a limited right of inquiry?
      There should be sensible limits, particularly in terms of bringing in the mediator. It is an
       impairment of neutrality and will encroach on the mediator's ability to serve the parties.
      A mediator should never be subpoenaed. That would defeat the purpose of the mediation - a
       safe place to air the issues freely knowing the data will be kept confidential.
      Allowing others to be subpoenaed threatens mediation itself, and will reduce the likelihood that
       mediation will be successful, delaying justice in courtrooms that are already overcrowded from
       budget cuts.
      This is a REAL slippery slope; it will become or invite a free for all!
      Since I want only the privileged private communications between client and attorney to be
       admissible, those would not involve and could not require the testimony of, other parties or the
       mediator. To protect the mediation contents, this testimony ought not be available to the public.




5. What position do you believe the SCMA should take on this proposal?

      This question needs more clarification. If you mean the proposal to preserve confidentiality then
       I strongly support it, however I am guessing you mean the one to allow for an exception to
       mediation confidentiality to allow for attorney Malpractice suits and if so I strongly oppose that.
      Oppose.
      A limited exception would turn the malpractice case into only a credibility contest between
       lawyer and client (if the issue were ONLY statements made during mediation). However, as a
       mediator I don't want to be drawn into someone else's case. I also appreciate the comments by
       the opposing lawyer you cited, that clients are often unhappy with hearing the truth from their
       lawyer at mediation.
      It is folly to think that limited scope exceptions and limiting instructions to fact finders will make
       the exception harmless. To believe this is to believe a jet passenger will survive crash if only
       their seat belt is fastened.
      Oppose pending further discussion/hashing out with stakeholders (mediators)
      The relationship in a mediation is tenuous enough at times. We don't need to introduce more
       contention and mistrust into the process.
      An exception for attorney misconduct should be carefully thought out and built into the existing
       confidentiality framework.
      I can understand why some people might want this exemption but I don't see how the lawyer
       could defend himself without breaking the confidentiality of the mediation.
      Strongly oppose
      AS he professional society, we should take the lead on opposing the legislation until it has been
       thoughtfully considered
      As written, the atty defendant can not have other parties to mediation, including mediator testify
       on his behalf; so lacks due process
      Strong support with the modification that ONLY private communications (in other words
       privileged) ones between client and attorney should be admissible, and no testimony from any
       other mediation participant including the mediator should be involved, sought, or admitted.
       Contents of any such testimony ought not be available to anyone other than the court.

6. Please state briefly your reasons:

      I think it is overbroad as worded and an overreaction to one particular case. Preservation of
       confidentiality encourages people to agree to mediation and assists in obtaining mediated
       settlements in general. It is the one time that parties who are embroiled in litigation can have a
       confidential discussion with their attorney and a neutral to try to sort out their options.
      Any exception to confidentiality will have a chilling effect on the process
      Because it is a slippery slope and mediation will stop serving the purpose it is designed for if
       confidentiality can not be upheld.
      The very essence and attraction of the mediation process is that the parties are from the outset
       safe in the knowledge that the confidentiality of the process is unassailable. For parties at the
       outset to know that a client attorney dispute between any of the parties can open up the
       confidential information is likely to be fatal to the process as we know it.
      Without complete confidentiality, the mediation room is less safe for the litigants. Allowing the
       testimony of others to come into a later proceeding, especially a malpractice proceeding, allows
    litigants to make statements designed to put opposing counsel at risk of malpractice unless
    he/she recommends settlement. It would create a potential conflict between client and counsel.
   I believe such an exception will hinder the basic constructs of Mediation and impede the flow of
    information, ideas, creativity and resolution opportunities.
   To uphold the high standards associated with mediation and to maintain trust in its process,
    contents of a mediation must still be kept confidential. Malpractice must be proved otherwise.
   this is one of the worst bills to surface in a long time. the author appears not to understand what
    mediation is. the lack of confidentiality would destroy the process.
   See answer to No. 1 above. Further, on a practical level, any client with buyer's remorse could
    become a potential litigant and it would inhibit attorneys from being able to properly advise their
    clients in mediation and could make attorneys less supportive of mediation as a form of dispute
    resolution.
   Paramount interest in maintaining confidentiality in mediation should warrant minimal intrusion.
    Anticipating exceptions proposed will warrant modifications to proposed language.
   This is a public policy issue which should not affect the mediator's confidentiality obligations.
   I fear this is a Pandora's box that once opened will allow much more opposition to mediator
    confidentiality.
   I have a peeve with law attempting to protect frivolity. A famous legal adage "De minimus non
    curat lex" (the law does not deal with trivialities) is an oxymoron in today's world. If a client is
    misinformed, uninformed, lied to, has no sense of value of the case, does not understand the
    risks involved or is badgered into a settlement etc. then malpractice has probably occurred but
    the incidents giving rise to malpractice occurred far before mediation. The harm to efficient and
    fair administration of justice via mediation is what needs to be preserved.
   As a mediator, I do not want to face the prospect of being a witness after every mediation that I
    handle.
   I think the client can be afforded the protection they are looking at with a better law, one that
    allows a client to vacate an agreement reached if only their lawyer is present at a mediation, or
    better yet, one that gives them a three day review period. I think confidentiality is paramount the
    same as it is in communication between the parties trying to settle. I think otherwise it will lead
    to many other law suits jamming the courts and hurting mediation as an alternative to court.
   The effectiveness of the mediation process needs to be confidential in all events.
   As written the bill destroys confidentiality; as you note, it must at least be analyzed and limited,
    if to be passed at all
   Allowing statements ONLY between the attorney & client could significantly disadvantage the
    attorney and/or client. If an exception is carved out, allow all communication.
   For the reasons set forth in your cover letter
   Not enough perspectives have been considered. The process is much too rushed.
   This bill is the "camel's nose" under the tent. If this exception is permitted, then what's next. The
    overused say of "a slippery slope" applies here.
   Confidentiality is an integral part of the mediation process. Any "watering down" of the
    confidentiality preserved by the present Evidence Code sections would seriously impair the
    mediation process.
   the problem is that AB2025 as written prevents atty from defending himself by having other
    participants come to his aid; yet as a mediator I do not want to be subpoenaed or be involved
    and I doubt other participants want to be involved as well. Is the real issue that the mediator is
    not controlling the mediation ? or should a fraud, duress, mistake, etc exception be put into this
    public policy of mediation confidentiality?
   Allowed only in attorney malpractice action by attorney's client. No other parties in the
    mediation should be required to testify or give any information, especially the mediator.
   The first 3 hours of court ordered unpaid voluntary mediation will be eliminated. Mediators
       would be required to purchase at least $50,000,000.00 in liability insurance to offset all potential
       legal actions.
      Only attorney client interaction while mediator and opposition are NOT present should even be
       considered as being an exception to the confidentiality provisions that exist. This would then
       boil down to a "he said, she said" issue between client and counsel. Seems like very little value
       added to the process or to client protection from malpractice. Where will it go next, to mediator
       pressure to settle being subject to malpractice claims?
      The time of a mediation ought no dissolve the attorney's duty to the client and accountability for
       PRIVATELY given advice. This does not involve any other parties.
      There are too many nuances for me to say I want the SCMA to weigh in; I don't believe
       mediators do or should speak with a single voice on this issue.

8. Where are you located? (additions to the options provided)

      San Francisco Bay Area (formerly in SF Valley but still commute to L.A.)
      Ventura County

9. If you were aware of this issue before receiving this survey, how did you hear about
it? (additions to the options provided)

      SCMA study group
      Mediator colleagues
      SCMA study group
      I read the cases every day.
      Email from opponent
      Other mediators
      I heard about it at the Orange County Mediation Conference two weeks ago.
      Appellate Court


10. Please enter the information indicated below to be informed of the survey results or
to be updated on this issue. By entering personal information, you consent to receive
email communications from the survey author's organization based on the information
collected.

The list of names and email addresses is in a separate document until decisions can be made on how
to use them and/or to whom they should be distributed. Since everyone responding is on the SCMA
eblast list, there may not be a need to create another list.

				
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posted:9/19/2012
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