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Tuesday, January 8, 2019

New Mediation Law Keeps Confidentiality Inviolate But Mandates Lawyers Beef Up Disclosures

California Evidence Code 1129 is new law.  It protects mediation confidentiality, with the caveat to lawyers to beef up disclosures concerning confidentiality BEFORE a client enters mediation.

In a nutshell, the new law ensures that whatever happens in mediation, stays in mediation.  However, as a lawyer representing a client who is headed into mediation, you have a duty to advise them of their rights and waivers as to communications occurring during a mediation (in or outside that mediation room!)  You have to basically tell them - in mediation, confidentiality is inviolate, and sure, you can sue me for malpractice, but you cannot use anything said in the course of this mediation as evidence.  (This basically means you have no case).

Anyway, this new law came after years of debate following the Casel case, where some client who went through mediation tried to sue his lawyer for malpractice, saying he was forced into an uninformed settlement. After that case, the California legislature tried to pass a law that excluded attorney communications in mediation as confidential when related to a malpractice claim. But there was gross outrage from practitioners everywhere!!!  (For obvious reasons, if what you say in mediation can come back to haunt you, why in the world would ANYONE mediate?  They would just GO TO COURT like any normal person!)

The text of the new law is below. Evidence Code 1129.  Put this in a template and give to all of your clients going into mediation!

Notice of confidentiality restrictions

(a) Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.
(b) An attorney who is retained after an individual agrees to participate in the mediation or mediation consultation shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements described in subdivision (a).

(c) The printed disclosure required by subdivision (a) shall:
(1) Be printed in the preferred language of the client in at least 12-point font.
(2) Be printed on a single page that is not attached to any other document provided to the client.
(3) Include the names of the attorney and the client and be signed and dated by the attorney and the client.

(d) If the requirements in subdivision (c) are met, the following disclosure shall be deemed to comply with the requirements of subdivision (a):

Mediation Disclosure Notification and Acknowledgment

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

* All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.

* Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.

* A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.

* A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.

NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.

[Name of Client] [Date signed]

[Name of Attorney] [Date signed]

(e) Failure of an attorney to comply with this section is not a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation.

Saturday, January 5, 2019

Mediation is Better for Divorcing Couples

Remember the fights we used to have as children?  The "Judges" were usually the parents, the teachers - people who knew us and cared about us.  And our fights were over nothing substantial.

As divorcing adults, the Judges don't care about us.  They are strangers assigned to the case - and likely temporary until replaced by the next Judge assigned.  On one case I had - it lasted 11 years, and in that time, we had a total of 4 Judges.  Each time, we had to rebrief the Judges.  The attorneys made a LOT of money on that case: 2 college accounts depleted, a family home sold.

Mediation isn't always available.  Sometimes,one spouse JUST needs to fight and will go to all ends of the earth to destroy the other side, even if it means ruining themselves and their children.  This is the "scorched earth" method.

3 reasons you should consider mediating your case.  You don't need to agree on anything - just agree to mediate.

1.  It is much less money.  Marriage is grand; Divorce - a hundred grand!  Lawyers are expensive, and paid to fight.  Fighting costs money.  A typical divorce lawyer in Los Angeles has a $10,000 retainer, billed against their hourly rates ranging from $350 - $1500 per hour.  And each of you has one!   A mediator is a neutral party - NOT paid to fight or advocate, but instead to facilitate a settlement.  A mediator charges much less than an attorney, and you are sharing the costs of the mediator.

2.  You cannot win in a divorce.  You are already starting with HALF of what you had!  No one wins. You may prevail at a hearing for spousal support to obtain the support you need.  But the truth is, if both sides were properly advised by counsel (or better, a mediator that knows the law), the support would have been paid anyway, without having to go to court!  Most people think going to Court is the ONLY way to get what they want and all good lawyers go to Court. This is not true.  In fact, the BEST lawyers can get what they want WITHOUT going to Court.

3.  The law is the law. I can summarize family law in 2 sentences.  1) Custody is awarded per the best interests of the children. and 2) Community property is all assets and debts acquired after the date of marriage and before date of separation.  It is amazing that from those 2 statements arise thousands of divorces which cost upwards of $100,000.  And who is winning after all that money is paid to lawyers?  The lawyers!  It isn't your pocketbook, or your children.  This couple spent ALL of their children's money for college (over $500,000) fighting over their kids!!!

4.  The Judge does not care about petty disputes, and in Family Law, most of it is petty.  In the story above, some of the requests taken to Court are a) prevent one parent from co-sleeping; b) set s Facetime schedule c) decide where kid should go to school; d) prevent Uncle from being around kid.

REALLY??!?!?!?  These irresponsible parents!!

Here is the basic rule: if it's your time, you make good Judgments for them.  If it's not your time, back off.

A good mediator would be able to provide information regarding certain things so you do not have to hire lawyers to file motions which piss off the Judge. 

5.  Most people can settle their disputes with information.  A common complaint is that one spouse is "hiding assets".  Unless you are Ms. Rossi, who hid her winning lottery ticket (and was punished because he discovered it!), most people DON'T have enough assets to justify hiding it.  Also, unless you have ready access to an offshore bank account, you would need to be dealing heavy in CASH to hide assets.  Presumably, drug lords, and money-laundering guys would hide money, but obviously people married to those types have bigger issues to deal with.   Sometimes one person is the financial person int he marriage.  In that case, ASK them for bank statements and tax returns!  By law, they have to produce it anyway, and the majority of people voluntarily produce this without attorneys!  Because the majority of people in the world are NOT hiding assets!

There are several other good reason, but those are the few I can think of.  If you are going through a divorce, try mediation.  Call my office to schedule.