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Mediation Confidentiality Threatened Again

Currently, the following proposed legislation has passed the Assembly and is now before the California State Senate. It is a travesty for mediator confidentiality in the State of California, and ineffective against non-attorney Mediators. If confidentiality is not truly confidential, the entire system fails. Yet, how can individuals harmed by illegal or unethical behavior find solutions? Is this the answer? This requires further dialogue.


The article, below, written by Phyllis Pollack, Esq. can be found at her website: https://www.pgpmediation.com/mediation-confidentiality-is-being-threatened-once-again/


"On Valentine’s day, 2023, Assembly member Jesse Gabriel introduced AB 924 to be added as Section 1770 to the California Code of Civil Procedure. Entitled, Alternative dispute resolution: complaints, it currently reads:


SECTION 1.

Title 11.5 (commencing with Section 1770) is added to Part 3 of the Code of Civil Procedure, to read:

TITLE 11.5. Alternative Dispute Resolution Complaints

1770.

(a) For purposes of this title, the following definitions apply:

(1) “Alternative dispute resolution” means mediation, arbitration, conciliation, or other nonjudicial procedure that involves a neutral party in the decision-making process.

(2) “Dispute resolution neutral” means an arbitrator, mediator, neutral evaluator, settlement officer, or settlement facilitator.

(b) A dispute resolution neutral or an alternative dispute resolution provider who receives a complaint against the dispute resolution neutral alleging that they violated a provision of any applicable rule of conduct as provided in the American Bar Association’s Model Standards of Conduct for Mediators, Family Mediation Standards, or Code of Ethics for Commercial Arbitrators or Judicial Council Ethical Rules in the course of presiding over an alternative dispute resolution proceeding shall do both of the following:

(1) Within 30 days of receiving the complaint, submit a report to the State Bar of California by mail that includes all of the following:

(A) A summary of the complaint.

(B) A copy of the complaint.

(C) The name and contact information of any attorney participating in the proceeding.

(2) (A) Within five business days of receiving the complaint, provide the complainant with written information regarding available procedures for notifying the State Bar of California that includes, but is not limited to, information on how to file a complaint with the State Bar of California.

(B) If the complaint arises from a mediation or arbitration, the written information required by subparagraph (A) shall also include a notice with the following language: “Notwithstanding the confidentiality otherwise attendant to mediation or arbitration, if a party to an arbitration or mediation believes that a mediator or arbitrator has violated any rule of professional conduct, the party should report their complaint directly to the State Bar of California.”

The legislative analysis by the Assembly Committee on Judiciary dated April 18, 2023 indicates that this bill arises out of the “monumental misdeeds” of attorney Tom Girardi. Girardi was a renowned lawyer in Los Angeles who has been accused of stealing millions of dollars meant for clients paid in settlement of mass torts. (Id.) The analysis notes that according to articles in the Los Angeles Times, private retired judges at a private judging firm- Judicial Arbitration and Mediation Services (JAMS)- helped Girardi mismanage the funds by acting as dispersing agents of the funds. In doing so, these private judges allegedly violated ethics rules.(Id.)


As a consequence, Assembly member Gabriel introduced this bill which has now cleared the California Assembly and is set to be heard by the Senate Judiciary Committee. The bill provides that a party may complain to the State Bar of California that an arbitrator, mediator neutral, evaluator, settlement officer or settlement facilitator violated “… any applicable rule of conduct as provided in the American Bar Association’s Model Standards of Conduct for Mediators, Family Mediation Standards, Code of Ethics for Commercial Arbitrators or Judicial Council Ethics Rules… “(Id.)

And in filing the complaint, it is to contain language stating that notwithstanding mediation (and arbitration etc.) confidentiality, if the party believes one of these rules was violated, the violation should be reported to the State Bar. In essence, mediation (and arbitration etc.) confidentiality vanishes.


Notably, the Rules of Professional Conduct governing attorneys are nowhere mentioned. Thus, the State Bar is being asked to discipline a neutral for conduct that may only in the most indirect way implicate a rule of professional conduct. For example, suppose at a mediation, a party believes that a mediator was not impartial as required by Standard II of the Model Rules of Conduct for Mediators (which are aspirational only and do not carry the force of law). The party complains to the State Bar. Then what? The proposed legislation does not say what happens once a complaint is filed.


Then there is the issue involving jurisdiction. Many mediators are NOT attorneys. Thus, I am not clear what jurisdiction the State Bar would have over such mediators other than if the unauthorized practice of law was at issue.


A moment’s reflection on this proposed legislation reveals that it raises a lot more issues than addresses them and most of all, does away with mediation (and arbitration etc.) confidentiality on the scantest of evidence.


If you would like to comment on this proposed legislation, I invite you to send your letters as follows:

  1. Mailing address: Assemblymember Jesse Gabriel P.O. Box 942849 Sacramento, CA 94249-0046

and/or by email c/o Assemblymember Gabriel’s Senior Legislative Aide, Dana Alpert, at dana.alpert@asm.ca.gov

and to 2. Mailing address: Senate Judiciary Committee 1021 O Street, Room 3240 Sacramento, CA 95814

and/or by email to sjud.fax@sen.ca.gov

and 3. Please send a copy to ronkelly@ronkelly.com.

… Just something to think about."





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