Can Mediators Be Forced To Kiss and Tell?

June 2005

In a recent column, "Absolute Confidentiality: Is It Wise?," I noted that California's Mediation Confidentiality Statute, Evidence Code 1115 et seq., bars all evidence of, among other things, attorney malpractice that takes place in the course of a mediation and, therefore, functions as an immunity statute as well. An attorney's lack of accountability in tort for malpractice that takes place during a mediation will ultimately make clients wary of allowing their attorneys to use mediation.

by Jeff Kichaven
Jeff Kichaven, A Professional Corporation

That column concluded that the statute needed to be reexamined, and likely changed, to allow accountability and keep confidence in mediation high. Further analysis has led me to the conclusion that there is a bizarre exception to the California Evidence Code's rule of absolute confidentiality, an inconsistency which shows even more clearly that these rules should be viewed as a work in progress which require improvement, clarity, and, ultimately, greater coherence.

Evidence Code Section 1119 (a) seemingly provides an absolute rule:

• No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

Thus, if a client believes that her attorney committed malpractice during a mediation, and brought suit, the attorney could presumably obtain a summary judgment every time, because Section 1119(a) precludes the client from offering any evidence of the negligent conduct.

An Exception to the Rule

A more specific statute seems to provide an odd exception to this rule. Evidence Code Section 703.5 provides, in pertinent part, that:

• … (N)o mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring in or in conjunction with the prior proceeding, except as to a statement or conduct that could … c) be the subject of investigation by the State Bar or Commission on Judicial Performance. … However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

So, since the specific generally trumps the general, and Section 703.5 is quite specific whereas Section 1119 is rather general, a good case can be made that a mediator (but nobody else who participated in the mediation!) can be required to testify as to an attorney's statements or conduct in a mediation if the statement or conduct could be the subject of an investigation by the State Bar, unless the mediation took place pursuant to those sections of the Family Code that relate to custody and visitation mediations.

What Were They Thinking?

The Legislature's intent in enacting Section 703.5 was probably not to make the mediator the only witness who could testify as to what happened when a client sues an attorney for malpractice that took place in a mediation. Section 703.5 was probably intended to allow mediators to testify in only in State Bar disciplinary proceedings themselves. But that is not what the statute seems to say. Its language is broader. And, the California Supreme Court has instructed us to use the plain meaning of the statutes when considering questions of mediation confidentiality because the court has found that language clear and unambiguous, and not to depart from that language even if a particular court believes that it would lead to an absurd result. Foxgate v. Bramalea, 26 Cal.4th 1, 13-14 (2001).

The situation is compounded by the fact that while a broad range of attorney malpractice "could be the subject of investigation by the State Bar," the limits of that range, and hence the potential scope of issues as to which mediators might be compelled to testify, is not entirely clear. The California State Bar Standards for Attorney Sanctions for Professional Misconduct do not contain a specific definition of "professional misconduct" for which an attorney could be investigated and ultimately sanctioned. Presumably, its jurisdiction covers all misconduct, particularly if that misconduct is willful. Regarding conduct which is not willful, but perhaps merely negligent, though, Section 2.6 of those Standards states:

• Culpability of a member of a violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3: a. Sections 6067 and 6068.

California Business and Professions Code section 6068, in turn, entitled "Duties of Attorneys," does not refer to "willfulness." Its description of duties includes most, but perhaps not all, aspects of an attorney's basic duty of competence, including the duty of truthfulness (subpart d), the duty to maintain client confidences (subpart e), the duty to keep clients reasonably informed of significant developments (subpart m), and others. Many of these duties could potentially be breached in a mediation and become the subject of a malpractice action.

In that case, and if Section 703.5, in fact, trumps the more general Section 1119, the mediator could be required to testify in that malpractice action—but the attorney and the client themselves, governed solely by the more general Section 1119, would not be allowed to testify at all—but, perhaps, only if alleged malpractice would also violate Section 6068. This would result in the bizarre circumstance where the mediator is the only witness. Some malpractice actions (those that involve conduct that might violate Section 6068) might survive summary judgment. Some would not. Courts would have a challenging time sorting it all out.

What about Hearsay?

The mediator's testimony would no doubt include large chunks of what he heard and saw the attorney and client say and do at the mediation. The hearsay rule would not prevent it. California Evidence Code Section 1220, which governs confessions and admissions by parties to actions, states:

• Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

This, of course, is a truly absurd result. Party-admissions are admissible, notwithstanding the hearsay rule, because the parties can take the stand and set the record straight if the hearsay-declarant has gotten it wrong. The Notes to Rule 801, Federal Rules of Evidence, state this rationale well:

• Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. Strahorn. A Reconsideration of the Hearsay Rule and Admissions, 85 U. Pa. L. Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore § 1048. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.

Why is "no guarantee of trustworthiness" required? It can be only because of the presumed availability of the party him or herself to set the record straight. Now comes the time to pull your hair out. The reason for the rule is violated to perfection. In some attorney malpractice cases, Section 703.5 appears to allow mediators to testify, even as to statements made by some others in the mediation. Those others, though, cannot take the stand themselves, to testify to the very same matters as to which the mediator testified—even if those others are the very parties to the malpractice case in which the mediator is called to testify. This subset of malpractice cases will end up being adjudicated based on records which cannot possibly be said to satisfy the interests of justice.

Rather clearly, this statute still needs some work.

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