A Misguided Attempt to Remedy “Mediation Fraud

The Bar Association of San Francisco to the Conference of California Bar Associations has proposed a controversial change to the Mediation Confidentiality rule, Evidence Code section 1120. For family law actions only, it would create an exception to mediation confidentiality for communications in mediation between spouses or registered domestic partners that constitute a fraudulent breach of fiduciary duty. This is a proposed resolution to the State Bar’s Conference of Delegates, which is a considerable distance from being an actual bill before the Legislature. We nonetheless take it seriously.

Mediation confidentiality is regarded as sacrosanct. Especially since the Legislature beefed up Family Code section 721 in 2003, fiduciary duties are, too. The rule change concerns their intersection, where a party in a family law mediation might suffer an unfair settlement as a result of the other party’s non-disclosure of finances or other fraud. The proposal begs the question of where to draw the line, might the aggrieved party claim “fraud” and want to open otherwise-confidential mediation communications to scrutiny.

The proposal reflects an unfortunate impulse of some towards making family law “special” and outside the normal rules applicable to other legal disciplines. This is a slippery slope; family law needs to remain in the mainstream. In 2007’s Elkins v. Superior Court ((2007) 41 Cal. 4th 1337), the Supreme Court prohibited the lower courts from allowing family law to fall into an administrative style of practice. It insisted that family law cases and lawyers be treated the same as any others in the courthouse.

Mediation fraud can happen, but remedies exist. At any rate, “fixing” the problem in the proposed manner is not worth the risk of undermining family law’s hard-won status as an equal partner in the courts.