CDRC's COMMENTS ON MEDIATOR ETHICAL STANDARDS
February 12, 2002
VIA EMAIL & FAX
Ms. Camilla Kieliger
Judicial Council
455 Golden Gate Avenue
San Francisco, CA 94102
Re: Standards of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases (adopt rules 1620 through 1620.9 and 1622 of the Cal. Rules of Court) Dear Ms. Kieliger: CDRC would like to thank the Drafting Committee for the opportunity to comment on these quite comprehensive and well thought out proposed Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases ("Rules"). In addition to CDRC's Board of Directors, our Qualifications & Standards Committee ("Committee") (roster attached at rear) reviewed these proposed rules in great detail. These rules are an excellent product and the Drafting Committee should be very proud of the body of work, including the many adjustments that were made in response to last year's comments. We understand, however, that it can be difficult to achieve a meeting of the minds with so many stakeholders. It often takes many round-table style discussions to fully explore the effects of these issues on those in the trenches. We look forward to working with you to make this a fair and lasting document. In furtherance of this mutual goal, CDRC offers the following. We have divided our comments into two parts - "General Comments" that deal with more conceptual, big-picture matters, and "Specific Comments" that focus on particular words or phrases. We have not generally reviewed the Advisory Committee Comments, mostly due to time constraints, but also because we were not sure that they were to appear as part of the Rules.
I. General Comments. A. Title and Scope. In looking at the intended application of these rules, while it is clearly the Council's intent to govern mediator behavior in court-connected mediations, we believe that targeting the mediators may slightly miss the mark. The more appropriate target of Judicial Council rules is the mediation programs, of which the mediation panelists are only one component, since these programs are technically a part of the court and the mediators, by definition, are not. However, setting up rules to govern the programs can resolve multiple issues at once, including the practical difficulties of defining "court-connected" mediations. Some counties' programs have rigidly defined rules and procedures, and others offer up a binder of mediator's resumes with no application or screening process and no formal court referral or order. If these rules govern the programs, they can concurrently address the practices of the mediators, the participants, the referring courts, and the mediation programs (which have ethical concerns of their own regarding issues such as impartiality and confidentiality). These Rules of Court should not follow the mediator, simply because that mediator is on a list; they should follow a particular case once that case is in the program. Structuring these rules this way will accomplish more, educate more people, and meet more of the Council's expressed goals, making this a more valuable and lasting document. Despite repeated temptation to reach further, CDRC's Standards of Practice for California Mediators ("Standards") spoke only to mediator behavior for the reason that ADR practitioners represent the large share of our members who would be subscribing to those Standards. In the Council's case, however, there is no reason to focus solely on the behavior of the mediators. Specific recommendations appear later in this document. However, CDRC would like to see the Council reach further and include all of the participants and stakeholders in these rules, especially in light of the fact that mediation is a voluntary process and the mediator has no control over the parties. We therefore suggest renaming the Rules, "Rules of Conduct for Court-Connected General Civil Mediation Programs."
B. Mediator's Duty to Inform the Parties. Throughout these rules, the mediator is called upon to "inform the parties" of their rights, of the confidentiality provisions, of the voluntary nature of the process, of their right to self-determination, and of what they should expect from the process. The timing of this is usually called for "by no later than the outset of the first mediation session (such as in 1620.3(a)). In practice, what this will mean is that every one of the approximate 3,000-5,000 mediators who are mediating court-connected cases will write up their own information form or brochure or disclosure document that accomplishes this requirement. Given that the major reason for putting these rules in place is to achieve uniformity throughout the State, it seems logical that there should be one "Information Pamphlet" written by the State, or the courts, or even by CDRC (a task that we would offer to undertake for the Council). This "Information Pamphlet" could then be distributed to every litigant entering the court's mediation program. This document would be especially efficient if it referenced or even included these Rules, the relevant sections of the Evidence Code, and ALL of the useful information the Drafting Committee wants the participants to know prior to entering into the mediation process. The last thing the courts want to do is set several thousand mediators out to make these informative statements orally at the outset of every mediation (which most attorneys and their clients strongly resist sitting through, let alone paying for the mediator's time to do so). This would be a little bit like making every judge explain the rules of the court and the rights of the parties at the start of each hearing. If the litigants and litigators are the "clients of the court", as Chief Justice George says, then we don't believe their true interests are being served by asking them to sit through such a verbal explanation. This is especially true in the many cases where there are sophisticated parties such as attorneys and insurance adjusters who attend many mediations each month. The second worst situation would be for each mediator to draft his or her own individual document representing how each interprets the process, in order that they might comply with the rule. We believe that this will work in contrast to the goal of uniformity. The solution is to remove from the Rules each of these critical items of information that the Council perceives the participants need to receive in a cogent and consistent way, and place them into a single, uniform Information Packet. Alternatively, the Council could require every court mediation program to provide a document that accomplishes this effectively, efficiently and uniformly. The next matter is the timing within which the participants are given this information. We believe that this information is critical and that the participants actually need it at the time when they face choosing or being assigned to a court's mediation program. The participants need to know about the process when contemplating it, rather than later after they have committed to it, or after they have selected a mediator, or when they are sitting at the table ready to begin a mediation. CDRC strongly recommends that ALL necessary information about the mediation process be given to the parties at the time of opting for, or assigning to, a mediation program. The only information they should receive later in the process is the mediator's disclosure, upon the mediator's being informed of his or her selection or assignment. Therefore, the ideal situation would be if this Information Pamphlet on mediation were made available to every litigant concurrent with filing or being served with a complaint, rather than waiting until they are contemplating ADR at a status conference several months into the litigation process. Several courts ties already doing this with great success.
C. Confidentiality and Mediator Reporting. Just as priests and psychologists cannot be made to disclose their communications with their "clients", a mediator must have the same protection. Without it, people would not offer confession, disclose feelings or insecurities to a psychologist, or do any of those things in a mediation, and all three would disappear for a lack of effectiveness. To allow this, would fly in the face of Foxgate, the Evidence Code, and the goals of the Council to instill confidence in the mediation process. This confidentiality is the very reason the Rules contain cautions, disclosures and requirements for waivers prior to allowing the mixing of mediation with other processes such as arbitration. Mediation is effective because it is mediation. To make it something else would cause it not to be mediation. Litigants have enough opportunities to speak on the record, including during deposition and in court. They do not have the ability during litigation to speak in total confidence without fear of reprisal. To reduce the protections that the process offers would be to destroy the very thing about it that makes it successful. Of special note here is not simply Evidence Code §1121, but the comment that follows it from the California Law Revision Commission ("CLRC"), which says:
"…the focus is on preventing coercion…a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decision-maker on the merits of the dispute or reasons why mediation failed to resolve it."Additionally, the language in Evidence Code §703.5 clearly states:
"…no mediator shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to [one]…that could…constitute a crime…or give rise to disqualification…"Finally, the Court of Appeal has held that "where communications were tendered under a guaranty of confidentiality, they are thus manifestly within the [California] Constitution's protected area of privacy" (Garstang v. Cal Tech, 39 Cal.App.4th, 526, 46 Cal.Rptr.2d, 84 (1995).
D. Confidentiality is a Tenet of the Mediation Process, Not a Privilege of the Parties. Rule 1620.4 on confidentiality should be clarified to reflect the intent of Evidence Code §1122. This should be done by removing the phrase "or the agreement of the parties" from the second line of subparagraph (a), and any similar phrases throughout the document. The simple agreement of the parties is not enough to allow disclosure, as they are not the only ones who have a right to confidentiality. The CLRC Comment that follows §1122 specifically states,
"mediation…communications may be admitted or disclosed only upon agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation…Agreement must be express, not implied."
E. Clear Line of Division between Mediation and Other Processes. Courts already possess the ability to order mandatory participation of the parties in a settlement process through the use of Mandatory Settlement Conferences pursuant to Rule 222 of the California Rules of Court. Courts already possess the ability to "outsource" discovery disputes by reference to a Discovery Referee. By referring a case to a Special Master, courts already possess the ability to send parties to a settlement process where the progress and status of the negotiations will be reported back to the judge and smaller decisions made on behalf of the judge by the private neutral. Courts already possess the ability to order parties to Judicial Arbitration; a process designed to give the litigants a neutral opinion of the "value" of the case. Additionally, disputants have the option of selecting an Early Neutral Evaluation for a similar purpose. In each of these uniquely defined processes, the conferences are presided over by individuals with the specific skills to conduct them, and the effectiveness to achieve a positive result in that setting, thereby satisfying the judge who ordered the litigants to that process. In these processes, the judge and/or the outside neutral can require the attendance of the parties, witnesses and experts. The court can also monitor progress, make orders to show cause, and order sanctions.
None of these is mediation. And mediation is none of these. Mediation is defined in the Evidence Code, and both the CLRC and the Legislature took painstaking care to define the mediation process and its confidentiality. Like the other processes, mediations are presided over by individuals with the particular skills to conduct them, and the effectiveness to achieve a positive result in a mediated setting, thereby satisfying the judge when litigants selected (or were ordered to) mediation. Judges and litigants have all of these tools at their disposal. We believe that, as mediation continues to prove its value to the courts and become a favored method of dispute resolution among litigants and litigators, there is increasing pressure to use the term in an overly broad manner which can begin to blur its legal definition. We believe that the Drafting Committee can help to preserve the success that mediation enjoys by ensuring that these Rules continue to define the clear line of division between mediation and these other ADR processes.
F. The Principle of Voluntariness - An Historical Perspective. A process is either voluntary or it is not. As described below, there are many forms of ADR that are designed to be anything but voluntary. However, mediation is one that is voluntary by definition. After all, the courts did not invent mediation; it has been performed by elders in villages for thousands of years. The courts merely found it relatively recently to be an effective dispute resolution tool in general civil cases. There seems to be some confusion about the notion of an "expectation" to participate in "good faith". For reasons described above, this is contrary to the definition of a mediation. It also directly contradicts Rule 1620.3, and the tenet that any person can leave a mediation at any time. Furthermore, an experienced mediator with good training will be able to help each party at the table find their incentive to have a productive negotiation toward settlement. If they do not have such incentive, it is useless to force them to continue participating. Additionally, to the extent that a court mandates the time frame within which the mediation must take place, it may find that it is trying to force a case to the mediation table before the parties have completed necessary discovery such as independent medical examinations in PI cases, destructive testing in CD cases, and key depositions in employment and other types of cases. Perhaps the confusion began when the legislature passed Senate Bill SB 401 in 1994 allowing courts to begin ordering parties into mediation in 1995 for the purpose of exposing litigating parties to the effectiveness of mediation in resolving these disputes. This was a Judicial Council pilot program designed as a three year test period in Los Angeles County (and other counties that chose to opt in), where the local community of mediators agreed to volunteer their services for this limited period of time in order to 1.) demonstrate the effectiveness of mediation; 2.) allow the Judicial Council to compile statistics on party satisfaction; and 3.) allow the Judicial Council to measure real cost savings to the court as a result of anticipated earlier settlement and fewer hours and days of hearings and handling a file. The reason for mandating the process during this pilot period was because of the fear that parties and their counsel would resist this new program, and that the Judicial Council would not receive enough data to support its study of the value of mediation. Ironically, mediation has become so popular today that the Council feels it needs rules to govern the programs and the mediators who work within them, which would seem to imply that the need to mandate has disappeared. Additionally, the only reason the mediators agreed to volunteer their time to perform mediations for the court was that the court could not mandate litigants to the process, while at the same time charging them. That pilot program was to end a couple of years ago, but an eleventh-hour bill in the legislature removed the sunset provision of that pilot program, leaving us with an open-ended timeline on mandatory mediation. This was never the intent when the program was conceived. Again, the irony is that it has become so popular that the Consumer Attorneys of California lobbied the legislature to continue mandating it beyond the planned obsolescence of mandated mediation. So for now, as long as we continue to operate in this limbo of an extended pilot program dating from 1994, which created a confusing oxymoron we call mandatory mediation, the courts will have a temptation to "expect" or mandate "good faith" participation by the parties it orders to attend. Thankfully, they have other processes at their disposal which allow them to do that, so they won't need to confuse the laws surrounding mediation with such a contradictory concept as mandating good faith in a voluntary process.
II. Specific Comments - Rule by Rule. Rule 1620. Purpose and function While we strongly recommend changing the title and scope as described above, should the committee reject this concept, then it should be made clear what defines a "court-connected" mediation. There are many courts that have a loosely defined mediation program where names (and sometimes fees and/or resumes) are made available to the litigants. It is not uncommon for mediators in most courts to receive a phone call from litigators asking the mediator to mediate a case, without any indication that it is a case that the court referred to mediation. This is why we feel whether a mediation is "court-connected" depends on whether it has been submitted to a mediation program within the court. The next step would be to determine whether the mediator is a part of that program and whether the mediator understood that the case came from the court program and was not simply a private mediation conducted in a litigated case.
We strongly recommend deleting the words "and protect" from the fourth line of 1620(a) and anywhere else they appear in the Rules. We are not aware of any instance of litigation over a mediator acting improperly, unethically, or in a coercive manner. Nor are we aware of any major allegation of mediator misconduct in the State of California. Additionally, one goal of these rules is to promote public confidence in the mediation process and the courts. Giving the public the perception that they need to be "protected" from the mediation process or that there is a need to be concerned about being "coerced" does not promote confidence, and we would oppose such a reference. Rule 1620(b)(1) appears to be redundant. Rule 1620(a) says that these rules establish minimum standards of conduct. We see no reason to follow that with explaining that they are not intended to establish a ceiling. While we applaud what 1620(b)(1) says, we don't feel it is necessary in the Rules. Because these are rules and will be enforced as such, we feel that they should be as brief as possible without sacrificing clarity. The second sentence in Rule 1620(b)(2) raises more questions than answers. We are not clear on what is intended by this language. We do not understand the meaning of the phrases "substantive legal duty of a mediator" and "nondisciplinary consequences of violating such a duty". Perhaps the sentence can be reworded to be more clear to the reader.
Rule 1620.1 Application We note that the Drafting Committee replaced "acting" with "serving". While we understand that we are servants of the court, we believe that the word "serving" has a connotation that includes volunteering or "serving pro bono". The verb that describes what mediators do is "mediating". The next best word might be "working". We would like to see one of these words used in place of "serving". Rule 1620.1(a)(1) should be deleted. Such a rule would mean that any mediator who places his or her name on a list at a courthouse and subsequently mediates a case that is pending in the court is conducting a court-connected mediation. Clearly, that is not the case. Mediators conduct private mediations all the time in litigated cases. Simply placing a mediator's name on a list at the courthouse should not reclassify that mediation as "court-connected". Again, this is why it is so important to have these Rules clarify what constitutes a court mediation program. We don't feel that a list or a binder of resumes qualifies as a "program", meriting the reclassification of a private mediation into a court-connected or court-annexed mediation. In Rule 1620.1(a)(2), the word “recommended” should be deleted. It goes against all ethical cannons for a court to "recommend" a mediator. Additionally, a judge should never select or appoint a mediator. However, a court ADR Director or Program Manager may, if allowed by court rules, select or appoint a mediator. In the comment following (c), it is unclear why judges are only "encouraged," rather than required, to be familiar with and observe these rules when mediating in the court's mediation program. We believe that any person who mediates should be bound by these Rules. This could cause a participant concern about a judge's status before revealing confidential information to him or her in a mediation. Many judges retire and/or only sit on assignment part or full time. The burden should not be on the participants to determine whether or not a judge is subject to these Rules. In order for participants to have the confidence in the process that is the goal of these rules, they need to know that anyone conducting the mediation is bound by the same rules of conduct.
Rule 1620.2. Definitions When compared to what is considered good practice in the field and to what actually happens in many mediations of litigated cases, the definition of Mediation in Rule 1620.2(a) is incomplete. In addition to communication, court mediators "facilitate negotiation" in an effort to achieve settlement. As is often found in the post-mediation surveys conducted by courts, they also help the participants reach a better understanding of each participant's interest, needs, values and options (which is often a reason given for cases settling shortly after the mediation session has concluded). Because the definitions in these Rules already deviate from the Evidence Code, we recommend adding the words, "and negotiations" after the word communication, and ", or a better understanding of each participant's interests, needs, values and options." at the end of the definition. Adding this last phrase actually lowers the minimum standard for conduct and appropriately sets the expectation of the court and the participants making it acceptable to fall short of reaching final settlement of a case, but to set the case up to settle, due to this increased understanding, at a later date. According to court surveys, this is what actually happens in practice in many mediations of court program cases at present. We are concerned about a minimum standard that defines the process as "reaching a mutually acceptable agreement".
By deviating from the Evidence Code definition of Mediator and deleting those who assist in scheduling and convening and those who translate for the mediator, the Drafting Committee has, perhaps inadvertently, narrowed the protection of confidentiality protection under a Mediation Consultation. The reason is that these assistants are often the ones who have these protected communications with the parties, but the Rules, as drafted, no longer protect them.
1620.3 Voluntary Participation and Self Determination For the same reasons we recommended removing "and protect" above, we recommend deleting "uncoerced" from 1620.3(a), because "consensual" implies uncoerced, making it redundant. We believe that paragraph 1620.3(a) is one paragraph that should be deleted in full from this document and instead incorporated into an "Information Pamphlet" that each participant receives as described above in our paragraph B.
Paragraph (c) is redundant and should be deleted in its entirety. The same information is adequately covered by paragraph (b), and is done with positive language that respects the participants' rights, rather than prohibitive language which will not instill confidence in the mediator, the process, the program, or the court.
Therefore, paragraph (b) can be combined into Rule 1620.3, which can become a single, two-sentence paragraph.
1620.4 Confidentiality In Rule 1620.4(a), please delete "or the agreement of the parties" for the reasons discussed above.
Rule 1620.4(a) says that there is a law that must be complied with. It looks like Rule 1620.4(b) says that the mediator must tell everyone that there is a law that must be complied with. This is another paragraph that should be deleted from the Rules and included in the Information Pamphlet discussed above. We don't believe that California Rules of Court need to contain Rules requiring the mediator to tell the parties of the existence of rules.
Additionally, assuming that these Rules will be altered to govern the process and the court programs as described earlier, we suggest the following addition to Rule (a): "The mediator and all participants must conduct all mediation and mediation consultations in accordance with the applicable law concerning confidentiality." In Rule 1620.4(c), the phrase in the fourth line references a mediator's "policy" and we think this should be "practice".
Rule 1620.4(d) also raises questions as to the meaning and intent. Our first thought is that it has been adequately covered in a wide manner in the last sentence of (c) immediately preceding it. We recommend relying on the last sentence in paragraph (c) above, without further modifying it to narrow it's protection in any way.
The second half of (d) is what is confusing to us. We were unable to put our finger on what personal gain the Rule was trying to anticipate and prevent. As for using information acquired in confidence to the detriment of any participant, this is exactly what participants allow us to do when they later grant consent to use the information. An example of this might be where a participant tells the mediator in confidence of proof they possess demonstrating that the other party has committed fraud. Later in a subsequent session, they will authorize the mediator to use that information in an attempt to gain leverage or a negotiating edge over that participant. The mediator then proceeds to use this confidential information specifically "to the detriment of " the other party. With this in mind, paragraph (d) should be deleted in full, causing the participants to rely on the broader protection of paragraph (c) above it.
Rule 1620.5 Impartiality
At the end of 1620.5(a), we suggest clarifying its intent by adding a sentence that says something along the lines of, "This does not preclude the mediator from forming an opinion for the purpose of case evaluation which may favor one participant over another." Rule 1620.5(a)(1)(A) needs clarification. Is the intent to include disclosure about the parties, or the participants? If so, mediators who specialize in construction defect or personal injury deal with insurance companies at the table every day. If participants are included in the universe for this disclosure, then these Rules would require a mediator to disclose every dealing with every insurance company and expert witness who attends a mediation. We suggest adding a paragraph (C) to 1620.5(a)(1) that says something like, "Anything else which could reasonably raise a question about the perception of the mediator's ability to conduct the proceedings impartially." To 1620.5(b)(1), we recommend adding "and the attorneys and parties in a case" after the words "A mediator" in line 27. This will necessitate adjusting the language throughout this section or consistency. Instead of addressing, "a mediator's duty to disclose" in line 40 of 1620.5(b)(2), it should be broadened to read, "The duty to disclose". Another example is in paragraph 1620.5(c), on lines 6 and 7, where it reads, "…after a mediator makes disclosures", it should be broadened to "…after disclosures have been made". The court has the right to order disclosures from all parties, and there is no reason to believe that the mediator has any way of knowing all of the disclosures that the parties or attorneys need to make to ensure impartiality. If for some reason the mediator's database does not indicate a prior relationship with an attorney because that attorney joined a new firm, or the old firm merged, or he left a firm to go into sole practice, this does not mean that the opposing party should be deprived from knowing about prior cases in which that attorney may have used the mediator. If a mediator has worked with three different attorneys named John R. Smith, and the one who just selected that mediator for a court case is not from the firm that any of the others were with, the mediator may not be able to make as accurate a disclosure to the opposing party as attorney Smith could make. In fact, armed with both, the opposing party has a much more complete picture of what questions or concerns, if any, they should have about the disclosures.
There is no way for a mediator to know everything that parties need to know when deciding if disclosed relationships are a problem. In the recent mediation of a court case with a large international conglomerate, there is no way for the mediator to know that this conglomerate, whose name was unknown to the mediator, recently acquired a regular client of that mediator's, until the regular client walks in as a representative of the conglomerate. The mediator did not have the ability to disclose this, but the corporate client did. The participants on the other side of the table were very concerned when they learned about the pre-existing relationship. The only reason they didn't learn sooner and have the opportunity to investigate it fully before agreeing to this particular mediator, was that the participants were not required to disclose what they knew about their relationship with the mediator. The disclosure requirements would be much more useful and helpful to all participants if the Rules made them what they should be - a mutual obligation to share information.
Rule 1620.5(f) should be deleted in its entirety. It is not up to any of us to decide what is inappropriate, so long as the participants have given their informed consent and are competent to do so. We are also mindful that well over 90% of the parties in court mediations are represented by counsel. We don't believe that the court has the right to limit the parties' freedom of choice, if those parties want to stay with a particular mediator, given lists with dozens to hundreds of other mediators from which to select a replacement.
It is also not unusual for disclosure issues to arise during a mediation. Take the example of a long and complex construction defect mediation. If the mediator has been through several sessions of mediation, at the great financial investment of the parties, and upon a site visit later discovers that he runs into any of the issues raised in parts 1-4 of this Rule. The parties must have the right to retain that mediator if they consent to after knowing what the disclosure item is. Especially if being forced to select a new mediator would mean starting over from the beginning of their process at a great cost to them. Additionally, in some small communities, when looking at specialized subject matter, the pool of potential mediators can be limited to where such an exclusion can become a hardship. These are only some of the reasons why nothing is more important to the mediation process than the parties' right to choose.
The issue of subsequent related services addressed in Rule (g) is complicated. First, we suggest a very important clarification after "A mediator must not provide any professional services" by adding "outside of the role of mediator in this or other disputes", and the phrase "non-mediation" after the word "accept" in line 8. However these changes do not answer all of the concerns of our members. Many employment mediators, for example, also provide gender and cultural bias consulting, or offer professional speaking services on subjects related to employment law practices, and give workshops on avoiding sexual harassment, and make a large portion of their living on these and other related non-mediation activities. If a mediator does an excellent job in mediating an employment case, and is approached some time later by the employer about doing some coaching, consulting, workshops, or perhaps reviewing their employee handbook, that mediator cannot and should not be put in a position where they need express written permission from the plaintiff in the earlier matter before they can accept this work. And yet Rule (g) says that this would be the case. The recommend the following sentence replace Rule (g) in its entirety: "A mediator must not form professional relationships which would raise a legitimate question about the integrity of the mediation process." Simply stated, we believe that this expresses the intent of this Rule. Additionally, it is safe to assume that a mediator is given confidential information in every mediation, so that modifier can be deleted. If this is the intent, it should be clearly stated that a mediator may serve as mediator in a future case for any or all of the parties in a present case without the written consent of all parties.
Another concern is that the comments say that the actions of the mediator are imputed to other members of their firm or company. If a mediator is one of three partners in an ADR firm, and the other partner has lunch with an adjuster while his partner is mediating a case involving that same carrier company, is that a violation of these Rules? What of the attorney-mediator who is still part of a big law firm, are his actions imputed to other attorneys in the firm, or vice versa? It is important to a court's ability to recruit panelists, especially where they are being asked to volunteer, that their innocent actions or the actions of their partners not be called into question. There is a strong sentiment among attorneys, realtors and accountants who mediate part-time, or are trying to gain the experience to become mediators, or who simply want to "give something back" by helping the court settle cases, that they cannot afford to expose themselves or their firms to potential damages simply by volunteering their services in a mediation. Their other option seems to be doing long, costly and time consuming conflict checks that should be unnecessary in a mediation process where, unlike arbitration and other forms of ADR, they have no ability to affect the outcome. Section 170.1 may not be the best way to track mediator disclosure, since mediators are powerless to affect the outcome of a case, and have no representational relationship with any party. This issue bears further scrutiny and clarification, with regard to sections relating to "disclosure", "gifts and favors" and "solicitation of business".
1620.6. Competence
We question whether it is necessary to have a Rule (a) that says that mediators must follow the rules of the court's mediation program. Like earlier, we don't believe the CRC needs a Rule that says that one must follow the court's rules, or they will be removed from the panel, as they would have been under the court's rules for not following the court's rules in the first place.
We believe that Rule (b) should be deleted in full and covered by Rule (a). These issues should be established by the individual court, since they are the ones who will need to decide if they want to take the staff time to record every misdemeanor against a mediator on their panel. These rules are not consistent with the spirit of mediation; they resemble rules that might be more relevant to a judge or the holder of a professional license issued through the State. When it comes to mediator disclosure, either to parties or to the court, it might be helpful for those on the Drafting Committee to ask themselves if they were a party in a mediation, would they need to know every one of these things about their mediator? We find in our experience, the parties understand that this is a non-binding process and that the mediator is powerless to influence the outcome, and that especially with able counsel, but even in the absence of counsel, parties do not fear much about a mediator's private or other professional life. What matters to the parties is whether the mediator has mediation skills to resolve disputes, and whether the mediator understand enough about the subject matter to be conversant with it. In real life, they are not very concerned about the items listed in Rule (b). Additionally, it is our guess that no many of the ADR Directors throughout the State would care to invest their time tracing and investigating most of this section. We suggest leaving it to the individual court program to decide, just as it decides requirements for training and experience to qualify for the panel, and continuing education to remain on the panel.
Rule 1620.6(c) is near impossible to comply with as a Rule of Court and needs rewriting. The goal of having the mediator assess their skills when presented with the case, and recuse themselves or withdraw upon determining that they are not able to serve the parties expectations as a mediator is adequately covered in rule (d) that follows. The real issue in (c) seems to be the need to match the right mediator with the right case. The problem is that the mediator is usually not the one in the position to do this. Usually, in court programs, the attorneys pick a mediator from a panel (hopefully after reviewing resumes and doing their due diligence), or the court assigns a mediator, depending on how that court program is structured. It is not uncommon for the mediator to know little or nothing at all about the case until it's time to mediate it (or perhaps a couple of days prior, if the mediator uses briefs from the lawyers). It is also not uncommon for a mediator to be told by the attorney who selected him or her for a case that the criterion for selection was their street address, or simply because neither attorney had ever heard of the mediator, so they assumed neutrality, each of these with no investigation at all as the mediator's skill level, knowledge, training or ability to conduct the mediation effectively. Again, with an eye toward creating Rules for purpose of maximizing the productivity of the mediations that take place through the courts' mediation programs, we recommend the following rewrite of Rule (c):
"The success of a mediation can be improved by the mediator who is selected or appointed for a particular case possessing the skills, training, knowledge, and ability to conduct a mediation effectively. Therefore, any court mediation program that makes available a list or a panel of mediators shall make available to litigants at the time at which they are considering their selection of a mediator, the resume or background information on all of the mediators on its panel. Those courts that assign mediators to a case, shall consider the mediator's skill, training, knowledge, and ability when assigning a mediator to a case. Attorneys selecting a mediator from a panel are advised to use due diligence in researching the skills, training, knowledge, and ability of the available mediators when making their selection."We also like the first paragraph of the Advisory Committee Comment addressing Subdivision (c) and strongly recommend adding it as a second paragraph to (c). We base this on an unstated goal of these Rules, which perhaps should be stated in Rule 1620(a), to educate the users (or stakeholders) of the court's mediation programs. This will be an important function of both these rules and the Information Pamphlet.
The Advisory Comment relating to Subdivision (d) appears to have been written to emphasize styles of mediation and substantive knowledge. It assumes that attorneys or parties selecting mediators do not know what to look for. In actuality, a good mediator should be able to do all of the things listed, but the language is skewed to favor those with a strong legal background such as retired judges or long-time litigators. It is difficult for a committee to draft language that tells users what to look for in a mediator's credentials without expressing the individual values of the authors. We do not believe that users need these Rules to tell them what to look for or what to value in selecting a mediator. Therefore, the entire comment related to (d) should be deleted.
We noticed that the reference to continuing education was omitted. It seems that a very appropriate place to encourage continuing education would be in this section under skills. While we feel that each court should set its own criteria for panelist continuing education, we recommend adding the following new rule (e) to Rule 1620.6:
"Every mediator on a court panel and every attorney who is a user of a court's mediation services is personally responsible for his or her professional growth with respect to learning about the mediation process. Every mediator and attorney should endeavor to continually improve and increase his or her knowledge about the practice of mediation, and developments in relevant issues affecting the use of mediation, through continuing education."Given the combination of court orders mandating to the mediation process, CRC governing it, the Evidence Code protecting it, and the State Supreme Court deciding cases relating to mediation, we feel a mandate for attorney and mediator continuing education on the subject is warranted.
Rule 1620.7. Quality of mediation process
Rule (a) on diligence is another rule that can be made universal to the mediator and all participants. Mediators are not the only ones who can be responsible for stalling a mediation to the frustration of everyone else at the table. We recommend replacing "A mediator must" with "A mediator and all participants must". In the second sentence, the same goes for scheduling. It is usually not the mediator who fails to schedule a clear block of time, giving the mediation the best chance of working. We recommend, "If a mediator and the parties schedule…all participants and the mediator must keep that time…"
Rule (c) is another paragraph that should be removed and placed in the Information Brochure. A mediator in a court mediation program is not usually involved in the parties' decision to mediate or to select a particular mediator. The parties should know everything in paragraph (c) long before they ever meet the mediator.
The same goes for the first sentence in paragraph (d). It should be removed to the Information Brochure. The second sentence should remain in tact. We recommend adding a new sentence to the end of (d) that more closely resembles the following: "When mediators discuss substantial issues, opinions or advice, they should remind the parties not to rely upon it as legal advice." Consistent with the ABA, such a notification only becomes relevant under these limited circumstances.
In Rule (e), the phrase "personal gain" is difficult because, technically speaking, recommending professionals at a point of impasse where the mediation would otherwise conclude without agreement, could be construed as serving the mediator's self interest in extending the mediation (if that mediator bills by the hour). By helping one party to learn more about their case (with the help of this recommended professional), the mediator could be construed as serving their own interests by extending the mediation process, thus earning additional money from the parties. We recommend deleting the last phrase from the last comma forward and replacing it with, "however, a mediator must disclose any personal or financial interest or relationship if recommending the services of specific individual professionals." We say "specific individual professionals" because it requires a different level of disclosure to say' "You should probably talk to an accountant", than to say, "Call my friend Jim, he's an accountant and can help you out of this mess."
Rule (h) can be troublesome in the face of neutrality. If by "may suggest possible settlement provisions" the Rule intends that a mediator can help shape the settlement agreement that describes the agreement the parties reached by adding suggesting terms, then this is nearly impossible to do while remaining neutral. It sounds like a mediator might suggest to a party who has agreed to accept a long string of payments that they may want to seek a Stipulation for Entry of Judgment from the party who promised to make the payments. This would be advice that works to the detriment of the latter party and makes the mediator partial per se, and is different than suggesting settlement ideas to those who are at an impasse. We recommend deleting the sentence, as there is no reason a mediator should be offering settlement provisions.
In the same section, "stating the settlement as determined by the parties" can be construed as legal drafting and not the practice of mediation. Whatever the eventual wording, we believe we all mean the same thing - that is that a mediator should never draft the agreement, but may help to act as scrivener while the parties' attorneys dictate, if that mediator chooses to do so. The language should more accurately reflect this.
In paragraph (i), we recommend adding a sub-paragraph (4) that addresses when the mediator feels he or she is unable to remain neutral. Since we asked that Rule 1620.5(f) be removed in its entirety, sub-paragraph (3) can be salvaged by adding, "the mediator feels that he or she cannot…" to the front of it.
In paragraph (j), on line 30, we recommend for consistency with paragraph (i), changing "discontinue" to "suspend or terminate".
Rule 1620.8. Marketing
Paragraph (b) on line 25 reads that a mediator must not indicate that he or she is "approved". While the rest of the paragraph is true and correct, the fact in most court programs is that mediators are approved, given that they have met the qualifications to apply, applied, and been accepted onto the panel. We recommend removing the word "approved". We also recommend leading with the positive spirited affirmative statement, rather than the prohibition by reversing the two sentences, "A mediator may…but unless specifically permitted by the court, a mediator must not…"
Additionally, with an eye toward governing the programs, in order to avoid discriminating against mediators who are not on the court panel, there should be a provision that the courts should not hold out their panelists as anything more than panelists, but not endorsed, certified or licensed by the court. There is one court in particular that tries to do this in order to convince the mediators to volunteer their services so that they can be part of the "elite" court panel. It's a bad idea.
We recommend that Rule 1620.8(c)(1) be followed by a new, related sentence preventing mediators from linking their fee to a particular result. This practice is unethical because it gives the mediator the appearance of a real stake in the outcome of the dispute.
Sub-paragraph (2) is unclear. We are not clear on what kind of favoritism statements the Drafting Committee anticipates and is attempting to prevent here.
Our concern with Rule (d) is that while it adequately prevents a mediator from soliciting, it does not address the reverse of this situation. It has become all too common for an attorney or insurance adjuster to attempt to dangle new business in front of the mediator in a veiled attempt to sway their neutrality. The comment in the draft says "so long as there was no explicit solicitation of this business by the mediator", but there seem to be other circumstances where the issue of "future business" is a concern, even when the mediator doesn't solicit it. We therefore recommend augmenting Rule (d) to read,
"Neither a mediator nor the participants may discuss or contemplate any future business relationship, including the possibility of future mediations, during a mediation proceeding. Additionally, a mediator and participants shall disclose any such discussions or contemplation that occur while a case is pending, but between mediation sessions, to all participants in the pending case."
Rule 1620.9. Compensation
In Rule (a), after "A mediator" at the beginning, we recommend inserting, "and all participants" in defining who must comply with any applicable requirements concerning compensation. Presently, there is no rule requiring the parties to pay the mediator the disclosed, agreed upon, and incurred mediator fee. Because these litigants come, in some cases by assignment, from the court, the mediator has no relationship with, or in many cases no communication with these parties and their counsel prior to or following the mediation session. We believe that the obligation to abide by a fee agreement is mutual, not simply a responsibility of the mediator, and in some courts this has been a problem. Ultimately, the Council does not want the court's mediators being forced to take parties to small claims court to enforce the court's policies regarding payment of fees. This would serve as a deterrent toward keeping good mediators on court panels.
In Rule (b), the first phrase is unnecessary and objectionable to our members. We recommend replacing the first sentence with the following sentence: "A mediator must disclose all applicable fees, charges and costs…" As to timing, we feel that "before commencing" the mediation is too late for the parties to have such disclosures, and have adequate time to react to them. We recommend "at the time of scheduling the mediation." Fees should be known before hearings are set and agreed upon.
In the last sentence of Rule (b), we also recommend adding "and all participants" after "A mediator", for the reasons described above.
Paragraph (c) is difficult to define or enforce, therefore we feel it makes for a bad rule. Especially given that parties can always control their expenditure by leaving any mediation at any time. A good rule, and one we could support, would be, "A mediator shall not attempt to charge fees for time or services not provided."
Fees are quite simply a disclosure matter. Since we hope that no court would assign a mediator to the parties when there are fees involved, we must assume that the mediator selection process included the evaluation of each mediator's fee, and a more useful rule would be to make sure that this disclosure happens. We believe Rule (b) covers this.
The unfortunate truth is that a mediator's fee can actually come into play in motivating the parties to settle. If parties are paying someone $12,000 per day, they are much more invested in resolving that matter, and the fee they pay him or her makes them feel like they must settle or look exceedingly foolish. In some cases, the attorneys will purposely select a mediator with a high fee such as this in order to motivate their clients to settle a case. This is one tool that is a freedom of choice, and that the courts cannot and should not take away. They should, however, ensure that nobody ends up with such a mediator unintentionally, and this is why the disclosure under Rule (b) are critical to the mediator selection process.
We feel that Rule (e) should not be a prohibition, but it should be a strong disclosure item. Most experienced mediators have had friends or relatives ask them to mediate a case. In addition to their past relationship, the mediator should be required to disclose any gift of significant value to the other side. Even after such disclosures, the opposing party will often agree to using that mediator. When questioned about this after their choice, they will say that they were confident in their case, but felt that the "friend or relative" of the mediator needed to hear this from someone they would listen to and respect. In their eyes, the mediator's past history, regardless of gifts or favors, was a positive and important link in their eyes because they felt that even a neutral with impressive credentials would not have the persuasion with this party that someone close to them could have. This is another example of a freedom of choice that benefits the process and cannot be removed from the mediation process in the courts without further diminishing its effectiveness. It also emphasizes the importance of disclosure in Rule (b).
Additionally, the phrase "of significant value" is too vague and should be replaced with "which might reasonably raise a question about the mediator's impartiality". We think this covers luxury cruises, but not a sandwich during the mediation. It covers expensive gifts, but not a free brown bag MCLE presentation at a law firm. We believe we are all after the same goal in this section - anything that might reasonably call into question the mediator's impartiality.
Rule 1622. Complaint procedure
In Rule (a) on line 36, please remove the word "recommends" for reasons described above.
On line 37, it is critical that the word "first" be inserted so that it reads, "Each court that makes a list available…must first establish procedures for …complaints". There have been problems with courts launching incomplete programs where they send cases out for mediation without any complaint or dispute resolution procedures in place. This is irresponsible practice that the Council should not allow.
We also recommend adding the following sentence to the end of Rule (a), "Any such process shall consider using mediation as a primary form of dispute resolution, and must include due process procedures." While this seems obvious, it is not the case in many courts and there have been cases where mediators have been removed without being told the reason or offered an opportunity to be heard on allegations against them.
Finally, any such process for enforcing rules must clearly specify its steps required for reinstatement, and for which violations reinstatement is available and for which it is not. In some smaller communities where the court mediation program is the "only game in town" for a mediator, there must be opportunities for continued relationship between a mediator who is found to have committed what the court calls a minor violation and that court.
As before, CDRC appreciates the opportunity to comment on the Draft Rules and hopes that our comments will be helpful. Please do not hesitate to contact me at any time to discuss any of our comments or any other issue relating to the proposed Rules. My direct line is 310-277-2236 and my email is KatzMedi8s@aol.com. You may also feel free to contact Lee Jay Berman, Chair of our Qualifications & Standards Committee who has had substantial involvement with coordinating these comments. Lee Jay can be reached at 213-383-0438 or via email at LeeJay@MediationTools.com. Respectfully submitted,
Michelle "Mickey" Katz
President-Elect, CDRC cc: Heather Anderson
Ruth Glick
James R. Madison
Lee Jay Berman
CDRC Qualification & Standards Committee 2002 Roster
Lee Jay Berman, Chair
Mediator and President of The Institute for Mediation Studies, Los Angeles, CA
Executive Committee and Director, California Dispute Resolution Council
Former Member, ADR Subcommittee Working Group on Ethical Standards for
Mediators in Court-Connected Mediation Programs
Former Director, Santa Barbara Superior Court ADR Program (CADRe)
Former Member, State Bar ADR Committee, Ethics Subcommittee
LeeJay@MediationTools.com or 213-383-0438
Patricia Brown
Executive Director, Peninsula Conflict Resolution Center, San Mateo, CA
Member, ADR Subcommittee Working Group on Ethical Standards for
Mediators in Court-Connected Mediation Programs
Former Executive Committee and Director, California Dispute Resolution Council
George D. Calkins, II, Esq.
Cox, Castle & Nicholson, LLP, Los Angeles, CA
Robert Dimitrijevich, Esq.
Just Resolutions, LLC, San Luis Obispo, CA
Ruth V. Glick, Esq.
Mediator & Arbitrator, Burlingame, CA
President, California Dispute Resolution Council
Director, The Mediation Society, San Francisco, CA
Adjunct Professor of Arbitration and ADR Law at UC Hastings College of the Law
Michelle Katz, Esq.
Family Mediator, Los Angeles, CA
President-Elect, California Dispute Resolution Council
Board of Governors, Beverly Hills Bar Association
Former Chair, ADR Committee of the State Bar of California
Former Chair, Beverly Hills Bar Association ADR Section
Laurel G. Kaufer, Esq.
Kaufer Mediation Services, Calabasas, CA
Jeffrey G. Kichaven, Esq.
Mediator, Los Angeles, CA
Board Member, Southern California Mediation Association
Adjunct Professor of ADR, Straus Institute of Dispute Resolution, Pepperdine Law School
Louise A. LaMothe, Esq.
Mediator/Arbitrator, Santa Barbara, CA
Former Member, California Judicial Council
Former Executive Committee, L.A. County Bar Assn. Dispute Resolution Section
Michael R. Powell
Vice President, American Arbitration Association, Los Angeles, CA
Michael B. Rainey, Esq.
Michael B. Rainey & Associates, Woodland Hills, CA
Board Member, Southern California Mediation Association
Nancy E. Spero, Esq.
Attorney/Mediator, Los Angeles & San Francisco, CA
Board of Governors, Beverly Hills Bar Association
Former Member, Los Angeles Superior Court ADR and Arbitration Committee
Former Chair, Beverly Hills Bar Association ADR Section
Author, BHBA Amicus Brief to California Supreme Court in Foxgate v. Bramalea