Conflict Resolution

Advanced Problem-Solving Strategies

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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.