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Remote Mediation Ethics

The COVID-19 pandemic has made many things about our jobs more difficult. And yet, there is a silver lining when it comes to case resolution.
 

The inability to safely congregate has compelled lawyers and claims professionals to turn to video mediation. Some were surprised to learn the benefits. Among these are that people are more relaxed in familiar environments; they feel more in control. Less stress results in better negotiation.

Pre-pandemic, the real decision makers often did not actively participate, instructing the attorneys, “Call me if something important happens.” These people missed getting the full picture. Now, there is no barrier (or excuse!) for parties who may be hundreds of miles away to actively participate. Again, the result is a better negotiation.

Lawyers must not shun mediating via remote technologies like Zoom. On the contrary, they have an ethical duty to master the technology. California Rule of Professional Conduct 1.1 imposes a duty of competence, which includes the learning and skill reasonably necessary to provide legal services. The rule specifies that if you don’t already have that learning and skill, go out and get it or hand the case off to someone who does. State Bar of California’s Formal Opinion 2015-193 addressed the question of technology competence in a case involving e-discovery. The opinion states: “An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.”

Of course, you will want to choose a mediator who is comfortable with remote mediation technology. One way for you to get comfortable with it is to ask that mediator for a free practice session.

New Mediation Disclosure Law

Effective January 1, 2019, California attorneys must provide a written mediation disclosure statement to clients or face potential disciplinary consequences.

What Does the New Law Do?
The disclosure does not protect clients so much as inform them about mediation confidentiality. Under changes to the Evidence Code, attorneys must have clients sign off on a mediation disclosure form as soon as reasonably possible before the client agrees to participate in mediation. If the attorney is hired after the client has agreed to mediate, the attorney must get the client’s sign-off as soon as reasonably possible after being retained. If the client signed off on a disclosure with prior counsel, new counsel should get another acknowledgement naming the current attorney. All clients should sign it.

The disclosure must be on a single page not attached to any other document and must be printed in the preferred language of the client in at least 12-point font. It must include the names of the attorney and the client and be signed and dated by the attorney and the client.

The law specifically contemplates an “attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.”

Unh-Unh, Not Me
What if the Evidence Code doesn’t apply to your practice area? You work in administrative law, such as Workers Compensation, or limit your practice to federal court.

Even if you never handle a case with a state civil court aspect nor a federal case with diversity jurisdiction, observing the new rule is the safe choice.That this amendment passed at all started with concerns about legal malpractice suits founded on communications within the mediation process. Legal malpractice suits are filed in state court or rely on diversity jurisdiction using state rules. Mediation confidentiality rules apply to all types of practice.

What Does the Disclosure Do—And Not Do?
The disclosure lays out the basics of the mediation disclosure rules, i.e., an almost total evidentiary exclusion of communications. This includes legal advice provided to a client during the mediation. Absence of the client’s signature or that the client did not receive the form is not a ground for invalidating a settlement agreement.

The “safe harbor” disclosure form in Evidence Code 1129 assures clients they can still sue for malpractice or report misconduct to the State Bar, just not using any evidence relating to a mediation.

How To Comply
Attorneys who regularly mediate should consider obtaining the disclosure at the beginning of the representation. The safe harbor form doesn’t limit the disclosure to a single case. Nonetheless, attorneys working on multiple cases under an ongoing or tripartite relationship may wish to add language to make it clear that the client is executing a blanket sign-off.

When The Injured Worker Calls- Ethical Implications

I get calls at least once a month from represented injured workers who don’t know what is going on with their claims. Stop and think about that in light of the Rules of Professional Conduct.

Typically, in violation of existing rules, the AA has not communicated with the client. Sometimes the attorney has given the client false information. Recently an IW told me his lawyer said there was no such thing as mediation for workers’ compensation cases.

Many of these IW’s are reaching out directly to the employer’s counsel to try to resolve their issues. This puts the employer’s counsel in a difficult ethical position. New Rules 4.2 (represented person) and 4.3 (unrepresented person) lay out the restrictions on defense counsel for that communication.

Frustrated injured workers who want to resolve their claims are seeking information on the internet. That’s how they get to me.

I am not an advocate for anyone; I am a professional neutral. I have always made that role clear to callers. New Rule 2.4 requires mediators to inform unrepresented parties of the mediator’s neutrality. All I can do is assure the workers that I am available to mediate and to talk to their lawyers or adjusters about starting the process.

If you get a call from someone who wants to mediate, don’t brush off that inquiry. There is no charge to talk to me about whether mediation is right for your case. I’ll give you the information you need.