The Superheroes of Facts, Evidence and Logic enter the fray over legal malpractice protection in mediation
Laws that continue to protect attorney misconduct during mediation need to be changed
It’s been a tough battle, but superheroes Facts, Evidence and Logic are winning the fight against continuing to protect attorney misconduct and malpractice during mediation. The pilot for the series began four years ago with the California Supreme Court’s decision that explicitly stated malpractice is protected by mediation confidentiality statutes. (Cassel v. Superior Court (2011) 51 Cal.4th 113, 138.)
The full-length series began a couple of years later in 2013, when the California Legislature referred the issue of attorney malpractice to the California Law Review Commission, CLRC, for study and recommendations. (Mediation Confidentiality: A Malpractice Exception or Not, Yeend and Gizzi, Plaintiff Magazine, October 2013).
The series has been entertaining attorneys and mediators ever since. Oh, you missed the first few episodes? Well, here is a synopsis:
The argument to continue protecting attorney malpractice posits a change in the statute would cause mediation participants to be less candid, be less willing to share information or even reluctant to participate. Enter superhero Facts, and the fight was dramatic, as there is no evidence to support this claim from any of the states that adopted the Uniform Mediation Act, UMA, or from any of the several dozen other states that have attorney and/or mediator malpractice exceptions.
Superhero Evidence enters and provides a sharp blow to the argument that there are not enough cases of malpractice to warrant changing the statute. The argument was based on the few cases that survived the long journey to the state Supreme Court. The broad umbrella of mediation confidentiality has made it impossible to determine exactly how many actual claims exist. One hair-raising example is noted in the California Law Review Commission’s memo MM36-s1. (Deborah Porter’s letter detailing Porter v. Manhattan Beach Unified School District.)
Superhero Logic smashed the ridiculous argument that since the law protecting malpractice has been in existence for 30 years, it should remain unchanged. Keeping laws unchanged only for reasons of longevity is not logical. Prudent legislators recognize that new information or changes in circumstances require revising laws. If laws were not changed, then women would still not have the right to vote!
The fall season premiered in October at the CLRC meeting. The fourth episode featured superhero Informed Consent. The challenge: if judges order parties to participate in mediation, or if there are court-connected mediation programs, are those judges or courts responsible for notifying mediation participants that both attorney and mediator misconduct and malpractice are protected? Historically, mediation participants have not been notified about malpractice protection. How will Informed Consent grapple with this insidious problem?
You ask, “What about attorneys who represent their clients in mediation, and who have not explicitly informed their clients that attorney misconduct and malpractice is protected?” It is the hope of many viewers that Informed Consent will triumph along with the other superheroes: Facts, Evidence and Logic! In addition, it is anticipated that in this fourth episode Informed Consent will go head-to-head confronting the ethical question of mediators having an obligation to inform participants that both mediator and attorney misconduct and malpractice are protected. This episode promises to be a real nail biter.
Much excitement has been generated for this fall’s series because of the “trailers” sponsored by those opposed to changing the rules: “The sky is falling − no one will mediate!” All this unfounded hype promises another thrilling season, as it improves ratings and increases the size of the viewing audience!
Stay tuned for future episodes when superhero Consumer Rights joins the other superheroes and tackles the thousands of mediation cases where one or more of the mediation participants is a self-represented litigant, SRL. It is anticipated that this episode will address the issue of the general public’s unawareness that malpractice is protected. When superhero Consumer Rights succeeds, the series may wind down as all of the specious arguments and emotion-laden excuses attempting to protect malpractice will be defeated. However, viewers should not lose hope as a new mini-series is in the works that will feature addressing the issue of mediator malpractice, competency standards and ethics. Stay tuned!
As this excitement-packed season progresses, the CLRC can move forward with its recommendation to the Legislature to rescind the protection of attorney misconduct and malpractice emanating from mediation. It is anticipated that in 2016 the CLRC will collect the award for Outstanding Achievement in Equitable Justice!
Nancy Neal Yeend
As of March 31, 2023:
Nancy Neal Yeend retired as a dispute management strategist and mediator. She founded The End Strategy (TES) in Portland, Oregon and mediated pre-suit, trial and appellate cases. Nancy trained over 6500 mediators nationally for courts and private practice. She taught at San Francisco Law School, Franklin Pierce College of Law, Stetson University College of Law, and served as National Judicial College faculty for 28 years.
It is so interesting, thinking back over my 40-year career as a mediator and trainer about all the people I have met, and where I taught. The story behind how I got hired at Franklin Pierce is really funny. The founder, Robert Rines was sitting on a park bench in SF, waiting for his wife to end her shopping, and was sitting on the same bench waiting for my husband. Bob and I got talking, and long story short, he mentioned wanting to start a mediation course for intellectual property, and asked if I could teach such a course. Of course I said, "Yes". The funny thing is that I did not know a lot about IP, but there were several IP attorneys in my office building, so I took them to lunch and asked them to tell me about cases. That is how I got information, so I could construct the roleplays. I taught for 8 years at Franklin Pierce--this is before it became part of the University of New Hampshire.
The other funny thing about teaching at 3 law schools and NJC, is that I think I have been the only, dumb, female, non-attorney faculty any of them ever had! Oh well, I guess if I had lived in Lincoln's day, I could have been an attorney, since you only had to read the law. I have done lots of reading!
2023 by the author.
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