Legal Ethics in Mediation
Having taught ethics programs to various bars and environmental organizations over the years, this is a good time to remind lawyers that they need to think about an attorney’s professional ethical obligations when representing a client in mediation, which has its own set of issues that need to be considered. Although this discussion focuses on California rules, and the applicability of specific provisions of the California’s Evidence Code, the foundation of those considerations is broadly applicable to most mediations (but there are some areas of law, e.g., family law, that may have their own distinct set of rules and protocols that should be reviewed separately).
To start with, all rules of professional responsibility otherwise applicable to attorney conduct similarly apply to an attorney’s representation in the course of mediation. For example, the attorney-client relationship is unaffected, a lawyer must continue to zealously advocate for their client, albeit in the case of mediation seeking an acceptable resolution for the client, and providing an honest assessment of the matter to enable the client to make an informed decision.
A mediation, however, is not the same as a judicial tribunal. Therefore, rather than applying parameters on what a lawyer may say to a court or do in a trial or in filings, statements in the course of the mediation, and to the mediator, would be governed by rules that address statements made by counsel to third parties.
A foundational principle of a mediation is that all communications made in the course of or during a pre-mediation consultation with the mediator, except as noted below, remain confidential, and cannot be compelled in the course of the litigation. This principle is strictly construed, even if it flies in the face of the equities resulting from maintaining confidentiality. This is necessary to enable the parties and the mediator to speak freely and explore all possible avenues of resolution. As I’ve written about previously, this would also extend to parties’ experts that are participating in the mediation, whose participation in many instances can further the opportunities for settlement. https://www.jabmediation.com/blog/mediating-expert-intensive-disputes.
Keep in mind, however, that evidence otherwise discoverable outside of the mediation is not rendered inadmissible or protected simply because it was brought up or used as part of the mediation. Rather, it is writings, statements, etc., prepared for the mediation that are protected under mediation confidentiality. One caveat to note, relevant to environmental disputes, is that in some instances it has been held that sample results themselves, prepared as part of the mediation, may not necessarily be considered protected writings that would be inadmissible in litigation. On the other hand, just because something that would otherwise be inadmissible in litigation is used in the mediation does not make it admissible. Note that there are some exceptions to non-disclosure, such as where the parties agree that a communication or writing can be disclosed, or where it relates to attorney misconduct.
The bottom line is that a lawyer cannot use the mediation as a shield to protect information that is otherwise admissible and discoverable.
This strict mediation confidentiality even extends to reports to the court, and except where the parties otherwise agree, the court cannot consider the mediation or any aspects of the mediation. For example, if I was asked by a court to mediate a case in which the court required me to report whether the parties were acting in good faith in the mediation, I would not take on that assignment. Such a query by the court would not be permissible. On the other hand, where I have been appointed and the court preliminarily asked for my assessment as to whether I believed the matter was even ripe for mediation, that did not tread on confidentiality restrictions.
What about the confidentiality of a settlement agreement itself agreed to through mediation? In most cases, that settlement agreement will be admissible, so long as any of the following apply: The agreement itself provides that it is admissible, the agreement provides that it is enforceable, all parties agree to its admissibility, or the agreement is used to show fraud, distress, or illegality relevant to an issue in the dispute. Oral agreements may also be admissible, but it is always recommended to enter into a written agreement.
It is important to keep in mind that an attorney may not refer to the mediation in a subsequent trial. To do so would constitute an “irregularity” in the proceedings, and, if the reference materially affects substantial rights of the party seeking relief, it could result in the court vacating the verdict and ordering a new trial.
Lastly, but no less important, the mediator will require that the parties and agents participating in a mediation sign a confidentiality agreement that sets forth the terms of the confidentiality of the mediation. Beyond that, Evidence Code § 1129 requires that attorneys, before having their client agree to mediation, provide to their client a disclosure of confidentiality that sets forth the restrictions in the Code, and have the client acknowledge in writing they have read and understood those restrictions. The Code provides a “safe harbor” disclosure form that can be used, which I've included below.
Joshua Bloom Dispute Resolution
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]
MEDIATING ENVIRONMENTAL DISPUTES
Such is the life of many experienced attorneys with environmental and natural resource practices, or insurance litigators facing environmental law issues: long-standing cases involving complex issues, often involving multiple defendants, experts and insurers, with an overlay of a myriad of cross and counter claims and motions galore. It is not unusual for a case to drag on for many years, and in some cases over a decade. Kids in grade school learning long division (do they still teach that?) when the case started are now in college. Litigation costs, whether it be attorneys’ or experts’ fees, quickly add up, outpacing any economic benefit that may be realized by prolonging the matter.
Yet, a majority of those cases are amenable to resolution through mediation, with the participation of both a mediator experienced in the substantive elements of the dispute, and parties to the litigation willing to engage in a good faith effort to resolve the matter. Achieving a successful result takes hard work, on the part of both the mediator and the parties. The fact that the dispute revolves around environmental and natural resources issues adds layers of complexity not encountered in a typical business or commercial dispute. The question is how best to navigate those practice-specific issues to increase the probability of reaching a resolution.
What is it about environmental disputes that sets it apart from other areas of law? First is the complexity of the law itself. Environmental regulations are detailed, voluminous, and complex. The rule against perpetuities has nothing against many environmental regulations. Attempting to unearth insurance policies that go back decades is typical. Endangered species cases need to deal with an array of scientific and regulatory issues. Having counsel, insurers, and a mediator that can speak the same regulatory, technical, and insurance language goes a long way towards at least having a common understanding of the lay of the land. It also sets a solid foundation upon which the mediator can speak directly with the principals of each party, and insurers, to explain in plain English the mediator’s assessment of the matter.
The other significant difference between environmental disputes and others is the underlying facts themselves. Many environmental disputes center on legacy contamination. Current owners, themselves liable parties under CERCLA, seek cost recovery from prior owners, operators, or generators. All parties make contribution claims. Assessing contaminant origins, fate and transport, and allocation, takes center stage. The operations associated with the initial contamination and hazardous substance releases may stretch back decades. An environmental forensics assessment may only go so far. Records are sparse, and workers or officers associated with those long-ago operations are deceased, and even if they can be located, may have little useful recollection of events, much less necessary specific information. In cases involving natural resource issues, understanding species biology and habitat parameters can be complicated, as is the interplay between species and wetlands regulation.
I have written in the past about including parties’ experts in mediation (https://www.jabmediation.com/blog). Having a mediator who can both speak the same regulatory and technical language as the experts, and understand the technical issues, can both expedite and facilitate productive settlement discussions. That experienced counsel tend to be involved in these cases furthers the opportunity for a successful resolution. And remember, as discussed in the article linked above, all communications as part of the mediation, including any discussion with or among experts, remains mediation confidential.
That environmental or natural resource dispute mediations will typically not conclude in one day is an understatement. However, with the necessary motivation of the parties, and participation of a mediator that understands the issues, a successful resolution can be reached efficiently and fairly.
I would be happy to discuss with you any disputes you are involved in, and how mediation may be a vehicle by which to effectively resolve the matter. I can be reached at josh@jabmediation.com or 510-495-0418. Please visit my website at www.jabmediation.com for further information.
MEDIATING EXPERT-INTENSIVE DISPUTES
There are a number of factors that must be considered before having experts participate in the mediation, and assessing how that participation should be structured.
Varying perspectives on central technical or scientific issues is a common thread among many environmental and natural resource law disputes, but is of course equally applicable to disputes in many other disciplines. It’s a familiar dynamic. A case involves highly technical matters, whether it be contaminant forensics, chemical fate analysis, health effects from exposure to pollutants, risk-based assessments, or for that matter any matter involving technical or expert issues. You hire top experts to advocate for your client’s position. So does the other side. All of those experts essentially have available the same information and data. Yet, they come to diametrically opposed positions. They prepare their expert reports. Depositions follow. Positions harden and litigation proceeds. The trial date approaches. The cost keeps going up, but no resolution.
A critical consideration is what role do those experts play when the parties are engaged in mediation efforts to resolve the dispute. As a mediator, I of course want to understand the perspective of each respective expert to better assess the strengths and weaknesses of each party’s case, help synthesize the central issues, and assist the parties in exploring ways to resolve the matter. However, simply hearing a party’s lawyer telling me what the expert thinks, or even reading expert reports or advocacy pieces, only goes so far. What is more meaningful in many cases is having the expert directly engage in the mediation.
There are a number of factors that must be considered before having experts participate in the mediation, and assessing how that participation should be structured. As an initial matter, it must be determined whether the dispute itself revolves around the technical issues to begin with. If not, no need for expert participation. If the technical issues are directly relevant to the dispute, the most benign structure is simply to have the experts sitting in the room with their clients during the mediation session, and having no interaction with the other parties. Each party’s experts will in that scenario explain to the mediator why their conclusions are correct and the other experts are wrong. Helpful to some degree, but there are even more robust options that may further dispute resolution.
In many cases, experts are talking past one another. Where the parties have proceeded under the construct that there are a multitude of disagreements among the experts, in some instances it turns out that there is actually less disagreement than first appears. Having the experts from the various parties together at some points during the mediation, under the direction of the mediator, may enable them to determine where there may be less disagreement than initially thought, and get to the root of the real and determinative differences. The mediation can then focus on those issues more directly and efficiently.
Of course, there naturally will be some reluctance to having the opposing experts engage with each other. Although mediation confidentiality will prevent any statements of an expert from being used against that expert, that does not address the fact that the discussion itself may clue one side into strategies and positions that the other side has no desire to share. That is where ground rules, agreed to by all counsel and the mediator, must be established to ensure no side is giving away anything it does not want disclosed. That said, by the time that mediation session occurs, it is likely that each expert knows full well what the other expert’s position is, and the bases of that position.
Whether it makes sense or is appropriate to have experts participate at all in the mediation, and if so, whether to bring the competing experts together in the same room, must be made on a case-by-case basis, and have the complete buy-in of the respective parties. But it should at least be considered, and in many cases can further prospective resolution.
The take away from this is that no two disputes or mediations are the same. Each has its own issues, flow, and personality that must be taken into account when considering how best to structure the mediation in a way to increase the chances of success.
Please contact me at josh@jabmediation.com to discuss your specific situation.