The State Of Mediation Confidentiality

The Questionable State Of Mediation Confidentiality

Confidentiality is one of the pillars of mediation. It is paramount to the success of a mediation as it encourages open and honest communication and helps build trust with the mediator. Maintaining confidentiality ensures that sensitive information remains protected, fostering and enabling participants to freely explore resolution options without fear of disclosure or repercussions outside of the mediation setting.

However, the future of mediation confidentiality has been called into question due to the unethical and disturbing conduct of other attorneys and dispute resolution neutrals.

Until recently, California had not adopted Rule 8.3 of the American Bar Associations Model Rules of Professional Conduct – the “Snitch Rule.” However, as of June 21, 2023, the California Supreme Court approved a new Rule 8.3 of the California Rules of Professional Conduct that is closely modeled after the ABA’s Model Rule 8.3. The California Supreme Court’s approval and comments can be found at:

https://newsroom.courts.ca.gov/sites/default/files/newsroom/2023-06/S280290%20-%20admin%20order%202023-06-21-02.pdf

The new California Rule of Professional Conduct 8.3 states:

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer shall, without undue delay, inform the State Bar, or a tribunal* with jurisdiction to investigate or act upon such misconduct, when the lawyer knows* of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial* question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

(b) Except as required by paragraph (a), a lawyer may, but is not required to, report to the State Bar a violation of these Rules or the State Bar Act.

(c) For purposes of this rule, “criminal act” as used in paragraph (a) excludes conduct that would be a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California.

(d) This rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program, or require disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.8.2; mediation confidentiality; the lawyer-client privilege; other applicable privileges; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234.

While Rule 8.3, which went into effect August 1, 2023, broadens the duty of reporting professional misconduct of other lawyers, it carves out protection for information protected by mediation confidentiality. Alternatively, Assembly Bill 924, introduced to be added as Section 1770 of the California Code of Civil Procedure, could create an avenue that side-steps mediation confidentiality. The proposed Section 1770, titled: “Alternative Dispute Resolution Complaints,” states as follows:

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.”

AB 924 allows a party to file a complaint with the California State Bar if they believe that a “dispute resolution neutral” (as defined above) “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.” Further, AB 924 requires the complaint to contain language that “notwithstanding the confidentiality otherwise attendant to mediation …” if a party believes the mediator violated any rule of professional conduct, they should report such conduct directly to the California State Bar. This effectively could completely remove mediation confidentiality.

Now, I am not contending that neutrals should not be disciplined for egregious and criminal conduct. But AB 924 arguably creates a broad opportunity for a party to file a complaint that could throw mediation confidentiality out the window.

Another concern with AB 924, as introduced, is that it could lead to potential disciplinary action by the California State Bar for purely subjective viewpoints regarding how a mediation proceeded. For example, California Rules of Court Rule 3.855 require a mediator to “maintain impartiality toward all participants in the mediation process at all times.” What if one party in the mediation believes the mediator was impartial simply because they did not obtain the result they wanted? If the party files a complaint, does a full-blown disciplinary hearing have to be conducted? It is unclear what the review process is for such complaints and what implications this could have on neutrals.

Even more, what about the countless mediators that are not attorneys? If the only agency a complaining party can file a complaint with is the California State Bar, then how could a non-attorney mediator be subject to any discipline and what authority does the California State Bar have over such parties?

As you can see, the future of mediation confidentiality is currently in limbo. While the new California Rule of Professional Conduct 8.3 attempts to protect mediation confidentiality, AB 924 creates a lot of ambiguity regarding how it could affect mediation confidentiality and the future discipline of alternative dispute neutrals.