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California Law Revision Commission

-- Last revised 6/22/17 --

Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct - Study K-402

    By concurrent resolution, the Legislature directed the Commission to analyze "the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct, and the purposes for, and impact of, those laws on public protection, professional ethics, attorney discipline, client rights, the willingness of parties to participate in voluntary and mandatory mediation, as well as any other issues the commission deems relevant." 2012 Cal. Stat. res. ch. 108 (ACR 98 (Wagner & Gorrell)).

In assigning this topic, the Legislature specifically requested that the Commission examine certain laws, court rulings, legal doctrines, scholarly commentary, and data. The Commission has completed the background work requested by the Legislature and has approved a tentative recommendation, which is being circulated for comment.

    Part I of the tentative recommendation summarizes the Commission’s research for this study. Part II explains the Commission’s preliminary conclusions, which are the basis for the proposed legislation in Part III of the report.

    The tentative recommendation is lengthy (158 pp.), but most of it consists of the research findings (Part I). The explanation and presentation of the Commission’s proposal (Parts II and III) are relatively short. See pp. 133-48.

    The Commission welcomes input from any knowledgeable source, including, but not limited to, representatives from the California Supreme Court, the State Bar of California, legal malpractice defense counsel, other attorney groups and individuals, mediators, mediation trade associations, mediation parties, and other mediation participants.

    A comment submitted to the Commission will be part of the public record. The Commission will consider the comment at a public meeting when the Commission determines what, if any, recommendation it will make to the Legislature.

    Comments can be in any format, but the Commission cautions commenters to be mindful of existing constraints on disclosure of mediation communications and materials. That is particularly important with respect to a mediated dispute that remains pending.

    In sharing information and views with the Commission, it is not necessary, and may be improper, to describe what happened at a particular mediation. Instead, comments that describe a situation in hypothetical terms, without revealing details that may disclose the identities of actual mediation participants, are preferable.

    The Commission often substantially revises its recommendations as a result of public comment. It is just as important to advise the Commission that you approve the tentative recommendation as it is to advise the Commission that you believe revisions should be made to it. To receive timely consideration, comments should be submitted by September 1, 2017.

    For a brief description of the Commission's study process, visit this page.

    If you have questions or comments on this study, please send an email to Barbara Gaal at bgaal@clrc.ca.gov.

Related Material


Tentative Recommendations and Other Requests for Comment

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Meeting Minutes

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Staff Memoranda

  • Memo 2017-30, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Draft Tentative Recommendation) (06/08/2017)

  • Memo 2017-31 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (06/05/2017)

  • Memo 2017-30, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Draft Tentative Recommendation) (06/01/2017)

  • Memo 2017-30 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Draft Tentative Recommendation) (05/30/2017)

  • Memo 2017-20, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (04/07/2017)

  • Memo 2017-19 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Draft Tentative Recommendation) (04/07/2017)

  • Memo 2017-20 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (04/07/2017)

  • Memo 2017-09, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (02/02/2017)

  • Memo 2017-09, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (01/31/2017)

  • Memo 2017-08 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Further Work on Draft Tentative Recommendation) (01/19/2017)

  • Memo 2016-59, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Possible Additional Reforms to Include in the Tentative Recommendation (1/13/2017)

  • Memo 2017-09 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (01/11/2017)

  • Memo 2016-60, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (11/30/2016)

  • Memo 2016-60 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (11/28/2016)

  • Memo 2016-59 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Possible Additional Reforms to Include in the Tentative Recommendation (11/23/2016)

  • Memo 2016-58 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Draft Legislation to Implement the Commission’s Preliminary Decisions (11/2/2016)

  • Memo 2016-50, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (11/2/2016)

  • Memo 2016-50, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (09/22/2016)

  • Memo 2016-49, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Certification Requirements (09/22/2016)

  • Memo 2016-50 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (9/20/2016)

  • Memo 2016-49 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Certification Requirements (9/19/2016)

  • Memo 2016-39, Supp. 3 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and other Misconduct: Additional Public Comment (07/22/2016)

  • Memo 2016-39, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Public Comment (7/20/2016)

  • Memo 2016-38, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Preliminary In Camera Filtering (7/20/2016)

  • Memo 2016-37 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Possible Questions for the State Bar (7/19/2016)

  • Memo 2016-39 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (7/19/2016)

  • Memo 2016-38 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Preliminary In Camera Filtering (7/18/2016)

  • Memo 2016-30, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Public Comment (06/01/2016)

  • Memo 2016-30, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Public Comment (06/01/2016)

  • Memo 2016-27 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Preliminary In Camera Filtering (5/27/2016)

  • Memo 2016-28 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Existing In Camera Approaches (5/27/2016)

  • Memo 2016-30 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (5/24/2016)

  • Memo 2016-29 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Scope of Public Disclosure (5/20/2016)

  • Memo 2016-19, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Public Comment (4/14/2016)

  • Memo 2016-19, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Public Comment (4/14/2016)

  • Memo 2016-19 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (4/7/2016)

  • Memo 2016-18 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: In Camera Screening Process and Related Matters (4/4/2016)

  • Memo 2016-8, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (2/4/2016)

  • Memo 2016-9 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: In Camera Screening Process (2/03/2016)

  • Memo 2016-8 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (2/3/2016)

  • Memo 2015-54, Supp. 3 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (12/10/2015)

  • Memo 2015-55, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (12/10/2015)

  • Memo 2015-54, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (12/10/2015)

  • Memo 2015-54, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (12/07/2015)

  • Memo 2015-55 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: In Camera Screening Process (12/4/2015)

  • Memo 2015-54 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (11/25/2015)

  • Memo 2015-46, Supp. 3 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (10/08/2015)

  • Memo 2015-46, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (10/08/2015)

  • Memo 2015-45, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Comments of Rachel Ehrlich (10/06/2015)

  • Memo 2015-46, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (10/05/2015)

  • Memo 2015-45 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Drafting Issues (10/02/2015)

  • Memo 2015-46 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (09/09/2015)

  • Memo 2015-36, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (08/05/2015)

  • Memo 2015-36 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (07/31/2015)

  • Memo 2015-34 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Scope of Study (07/31/2015)

  • Memo 2015-33 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Compilation of Possible Approaches (07/30/2015)

  • Memo 2015-35 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Scholarly Commentary (07/14/2015)

  • Memo 2015-22, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Further Discussion of California Law (06/2/2015)

  • Memo 2015-23 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Scholarly Commentary (05/28/2015)

  • Memo 2015-24 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (05/20/2015)

  • Memo 2015-22 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Further Discussion of California Law (05/20/2015)

  • Memo 2015-13, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (05/20/2015)

  • Memo 2015-13 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (04/03/2015)

  • Memo 2015-4 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Further Discussion of California Law (04/02/2015)

  • Memo 2015-5 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Empirical Data (02/20/2015)

  • Memo 2014-60, Supp. 3 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (02/12/2015)

  • Memo 2014-60, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (02/12/2015)

  • Memo 2015-6 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Data From the Early Mediation Pilot Programs (01/13/2015)

  • Memo 2014-60, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (01/06/2015)

  • Memo 2014-59 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Comments on Miscellaneous Other States (12/09/2014)

  • Memo 2014-60 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (12/5/2014)

  • Memo 2014-58 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Further Discussion of Federal Law (12/5/2014)

  • Memo 2014-45 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Federal Law (10/27/2014)

  • Memo 2014-46 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (10/23/2014)

  • Memo 2014-44 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Texas Law (10/23/2014)

  • Memo 2014-43 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Pennsylvania Law (10/06/2014)

  • Memo 2014-36, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (09/05/2014)

  • Memo 2014-35, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Law of Other Jurisdictions (09/03/2014)

  • Memo 2014-36 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Public Comment (09/02/2014)

  • Memo 2014-35 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Law of Other Jurisdictions (08/29/2014)

  • Memo 2014-27, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: New Developments and Recent Communications (06/12/2014)

  • Memo 2014-27 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: New Developments and Recent Communications (06/09/2014)

  • Memo 2014-24 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Implementation of the Uniform Mediation Act (06/06/2014)

  • Memo 2014-14, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Law in Other Jurisdictions (04/10/2014)

  • Memo 2014-14 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Law in Other Jurisdictions (04/07/2014)

  • Memo 2014-06, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Material Received at Meeting) (02/06/2014)

  • Memo 2014-6 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Preliminary Analysis of Relevant Policy Interests (02/03/2014)

  • Memo 2013-47, Supp. 3 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (10/10/2013)

  • Memo 2013-47, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (10/7/2013)

  • Memo 2013-47, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (09/19/2013)

  • Memo 2013-47 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (Public Comment) (08/27/2013)

  • Memo 2013-39, Supp. 2 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Comments of Kazuko Artus (08/02/2013)

  • Memo 2013-39, Supp. 1 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct: Additional Matters (07/31/2013)

  • Memo 2013-39 -- Relationship Between Mediation Confidentiality and Attorney Malpractice and Other Misconduct (07/23/2013)

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Additional Materials

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