Monday, February 23, 2015

Mediation confidentiality in California

I will be speaking as part of a panel, along with Mary Culbert and Phyllis Pollack, on Saturday, February 28, 2015, at 10:00 a.m., at Loyola Law School. The topic is mediation confidentiality. It's a timely subject, because recent cases have raised questions about whether the broad protections for mediation confidentiality in California, can still be relied upon. In particular, many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined "due process" exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception to mediation confidentiality in attorney malpractice cases.

We will be reviewing the history of mediation confidentiality in California, including discussing the leading cases, statutes and rules on the subject. We will also be discussing the dilemmas involved in maintaining the secrecy of communications among parties in caucus-style mediation. We will review survey information showing how often the courts have had to deal with problems claimed to have arisen in mediation. We will also discuss the possible scope of the "due process" exception, as well as whether an exception should be granted for attorney malpractice. That may lead to discussion of the broader problem of how to handle party dissatisfaction with the results of mediation while maintaining the confidentiality and integrity of the process.

All that, and lunch too. Further information, and registration for the program, sponsored by SCMA and Loyola Law School, can be found here.

Thursday, February 19, 2015

Learning from mediation

Someone posted a question on an online forum about a divorce agreement reached after two days of mediation. The questioner's ex-wife wanted to set the agreement aside because some stock options assigned to the husband in the settlement agreement had subsequently skyrocketed in value. The husband was looking for some ammunition that would allow him to retain the full value of these assets. (Almost the exact same situation can be found in the recent California Court of Appeal case of Lappe v. Lappe, No. B255704 (2d Dist. Dec. 19, 2014). In that case, the wife was seeking discovery of financial statements provided by the husband during the mediation, for the purpose of attempting to set aside the mediated property settlement on the grounds of fraud and duress.)

MyDivorcePapers blog
Faced with such a crisis, it seems the natural tendency of parties and their attorneys is to analyze the issue in legal terms and threaten to go back to court for resolution. The wife's first response was to accuse the husband of fraud, and look for other possible grounds to set the agreement aside. As for the husband, instead of expressing joy at receiving a financial windfall, or any desire to share it, he instead seemed very anxious to prove that he had no inside knowledge of the increase in value, and therefore was entitled to retain it for himself.

I responded to the question by saying that I thought it was a shame after two days of mediation that the parties had not learned a better way to resolve conflicts. Presumably the parties came to mediation the first time because they thought it would enable them to achieve a cheaper or faster or in some other way superior means of resolving the dispute over the allocation of their marital property. Why wasn't their first thought to go back to mediation a second time to resolve this new dispute? Presumably the parties should have gained some experience in two days of mediation that would encourage them to seek a mutually agreeable resolution, instead of each seeking to win at the expense of the other. Why did they revert to a "fight or flight" response as soon as they were presented with a new challenge?

We are seeing an increasing number of cases seeking to set aside agreements reached in mediation. To me, that indicates that mediation is not always succeeding in instilling in parties the values that mediation is supposed to teach. Instead we are using mediation to cajole parties into fragile settlement agreements to which they are not fully reconciled. Settlement is unquestionably an important goal of mediation. But perhaps more importantly, mediation should aim at helping people view conflict as an opportunity to understand and satisfy both sides' interests and needs, rather than as an excuse to descend into a destructive cycle of blame and recrimination.

Monday, February 16, 2015

Tune in

I will be a guest on the Doug Noll radio show on Thursday, February 19, 2015. The program is broadcast over the internet and its website can be found here. In case you miss the program Thursday night, however, I believe it will soon be available on the website.

I expect to be talking about the business of mediation, how mediation may be transforming the civil justice system, and whatever else comes to mind. I'm looking forward to the opportunity.

UPDATE (3/5/15): It appears the audio file was erased by the web radio station, so my interview is now lost to posterity. Doug promises that we will do another program soon however.