An Australian and a Canadian walk into a California Law Revision Commission Meeting… And Listen.

Jennifer Winestone and Karinya Verghese[1]

10 December 2015

Confidentiality has long been touted as a cornerstone of mediation practice in California. However, that may soon change due to a proposal to amend the Evidence Code protections for mediation confidentiality (sections 1115 – 1128).

Today we attended the California Law Revision Commission (“Commission”) meeting, which considered (among other agenda items) the proposal, which would carve out an exception to mediation
confidentiality in cases of alleged attorney malpractice and other misconduct (Commission Study K-402).

This hotly-contested issue largely arises out of the decision in Cassel v. Superior Court of Los Angeles County 51 Cal 4th 113 (2011) which held that mediation confidentiality includes private discussions between attorney and client during the mediation process. We understand that the precipice of the Commission’s study arises from a concern raised in obiter by the dissenting judge on appeal, Justice Dennis Perluss. Specifically, Justice Perluss noted that, “protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation.” In his dissent, Perluss invited the current legislative inquiry by noting that it is up to the state Legislature “to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so”.

The Commission comprises of 10 sitting commissioners.   In addition to those Commissioners, approximately 40 members of the public attended the open meeting. Public attendance included members of the mediation and collaborative law communities, lawyers, and two retired judicial officers. The majority of people in attendance were from the family law bar and collaborative family law community. Although the Commission appears to have expected public attendance, they were unprepared for the volume of attendees and seating was added to accommodate the crowd.

At the start of the meeting, Commissioner Victor King, chairperson of the Commission, joked that the mediation confidentiality discussion had been postponed for another day. This helped ease tensions as the crowd anxiously awaited the agenda item of the day and their opportunity to be heard on the issue.

After an explanation of the Commission’s study and proposal process by Commissioner Barbara Gaal (Chief-Deputy Counsel and lead of Study K-402), Commissioner King invited comments from the public on two issues:

  • the proposed exception to mediation confidentiality; and
  • the concept of in camera proceedings for malpractice actions brought under the legislative exception (which concept was submitted by the Southern California Mediation Association (“SCMA”) as a proposed compromise to the balance of confidentiality/accountability interests arising from the exception).
  1. Arguments Against the Proposed Amendment to Mediation Confidentiality

Fern Topas Salka, Fred Glassman, Bob Flack, Hon. Keith Clemens, Comm. (Ret.), Ron Kelly, Hon. Gretchen Taylor (Ret.), Kelly Chang Rickert, Warren Sacks, Leon Bennett, Delilah Knotts-Rios, Karen Rosin, Mark Baer and Cari Pines spoke in opposition of the proposed amendment. The arguments broadly fell into three categories, namely that the proposed amendment would:

  • diminish candor (as the mediation room will no longer be an environment of “safety and trust”);
  • stifle the creativity of settlement options; and,
  • produce significant consequences to the viability of mediation as an alternative to litigation, resulting in an increased court docket and decreased mediation participation by both legal professionals and their clients.

Essentially, it was the opinion of the opposition that the proposed amendment would do far more harm than good.

  1. Arguments For the Proposed Amendment to Mediation Confidentiality

Jeff Kichaven spoke in support of the proposed amendment. He based his argument on “the rule of law” and the principal that “for every wrong, there is a remedy,” explaining that if an attorney causes harm, he/she should be liable for damages. He also opined that the reasons proposed by the opposition are speculative and not grounded in empirical evidence, noting that states that have adopted similar exceptions to mediation confidentiality have not suffered the harm alleged by the opposition.

  1. In camera proceedings

The SCMA urged the Commission, in the event that it decides to recommend the legislative exception, to also recommend protective measures, such as in camera proceedings, to address confidentiality concerns. Such in camera proceeding would involve a non-public evidentiary hearing to determine the admissibility of proffered evidence from mediation communications in cases of alleged attorney malpractice.

When asked about the in camera proposal, the public largely responded that it was a subsidiary issue of an already unpopular exception. Accordingly, the majority either opposed the proposal or abstained. Those who spoke on the issue raised concerns that in camera proceedings would be burdensome on the courts and result in unpredictability with respect to mediation confidentiality. Additionally, speakers addressed process-related concerns regarding notice, costs and standing of parties whose privacy interests may be affected as parties to the mediation, but who would not necessarily be party to the malpractice action.

  1. Next steps and Questions Raised

The Commission noted that it was early in its decision process and only at the tentative proposal stage (as opposed to a final proposal which is submitted for consideration in the general legislative process). However, it also suggested that it was unwilling, at this time, to revisit the decision to craft an exception to mediation confidentiality. The general reaction from the public in attendance was disappointment.

As observers, the process today raised two interesting questions, which we leave open for comment:

  • First, there was a significant under-representation of commercial and employment mediators and attorneys – what are their views on the proposal? Does the proposal’s impact vary across areas of practice; and
  • Secondly, is this a zero sum game or are there other alternatives that the Commission should consider in balancing party confidentiality and attorney accountability? If so, what are these alternatives, and how can they be implemented?

For more information on the Commission’s study and work to-date on this issue, please see http://www.clrc.ca.gov/K402.html

[1] Jennifer Winestone, Esq., LL.M. (ADR) is a family attorney from Toronto, Canada with a license to practice in Ontario and California. She practices as a family mediator in Los Angeles. Karinya Verghese, LL.B, LL.M (ADR) is a corporate attorney from Sydney, Australia. She practices as a commercial mediator in Los Angeles.

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Why do we let it go so far? How to have a “little conversation” that may improve your life.

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I spent the majority of my career in corporate law. Accordingly, most of my experience (both professionally and personally) is with lawyers.  Interestingly, the majority of “big firm” lawyers that I know are desperately unhappy in their careers.

Like the US, the legal profession in Australia is highly respected and coveted, bearing a strong barrier to entry.   So why, once we’ve finally breached the walls of the bar and practiced for some time, are we often so miserable?  Note: this question relates to anyone in any career.

I was also guilty of said unhappiness… in fact, after having started a career in mediation and conflict resolution consulting, I often refer to myself as a “reformed lawyer.”

This led me to ponder the reasons why I, countless other professionals (and perhaps, even you in your own career) persist with vocations that bring us little joy, and what we might do about it.  After all, we change the channel when we don’t like a TV show, we leave a partner when the relationship is no longer good for us and we move house when we feel that a neighborhood is no longer safe or desirable. So why then don’t we leave a job (or career) from which we gain little enjoyment or fulfillment?

Of course, it is likely to be connected with financial concerns and issues including family, sense of self, stability, fear of the unknown, fear of failure. However, given that we spend more time in the office than we do at home, often seeing our colleagues more than we see our own family and friends, surely, the incentive to change jobs must weigh against that.

Apparently not.

Instead, many of us remain disengaged.  We choose to “punch in” at work, day after day, making it a pastime to complain about our jobs, colleagues and how we are not living up to our potential (or perhaps how others, or the powers-that-be, prevent us from doing so).

If you feel like this in your career, look for the “little conversations” or “small changes” that could bring a ray of light into what feels like an otherwise dark tunnel.

A former colleague experienced just that.  She shared that she had become increasingly disengaged in her role at work but continued to stay largely because of the pay and her hard-won reputation with colleagues and clients.  She acknowledged that her despondent attitude towards work had bled into her personal relationships as well as her energy for life.  She was starting to experience bouts of depression, weight gain and other difficulties – all stemming from her unhappiness at work. Even with this awareness, she chose not to do anything about it.

We talked about her decision to stay, and I asked her what, in an ideal world, she would love to do for work. Her eyes sparkled as she started to rapidly bounce around different ideas and thoughts on project management and changing the way in which things were done at her current organization. It seems she had never entertained the idea of finding her passion within her current job.

This conversation became the necessary catalyst for change.  Soon after, my colleague reached out to share that she had found multiple opportunities to contribute and showcase her ideas, one of which was within her own organization! She was brimming with renewed energy.

The key takeout is, even if we feel we can’t leave our job, we may be able to find a small (but significant) ray of light that makes our current role more palatable.

Spend ten minutes considering what you enjoy and what makes you happy.  Examine how and where this joy could intersect with your role at work.  See if there is a “little conversation” that you could have with a work colleague, superior or HR that would allow you to incorporate a little of this happiness in your day-to-day life. Whether it is joining a new committee, attending a conference or learning a new language… any positive change (no matter how small) is movement in the right direction.

Remember, to emphasize that this seemingly “small change” is likely to have a big impact on your professional life and outlook… potentially, making you more productive, dedicated and energized in your role.

Raising the Bar: How to Ask for a Raise and Increase Your Chances of Getting It

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We all hope that when the time comes, our managers will do the “right thing” and give us a raise (without our needing to ask for it).  In reality, however, this is often wishful thinking.  As such we need to proactively protect ourselves and take remuneration negotiations into our own hands.  While the conversation may still be difficult, below are ten steps to making it more palatable and productive: for both you and your manager.

Part 1: Before the conversation

Tailor your approach – depending on how long you have worked with your manager, you should know his/her interests, needs and goals.  If you don’t, try talking to a trusted colleague who knows your manager better and get an understanding of what is likely to get the best response. Pitching your raise request in accordance with your manager’s needs increases the chances of a successful outcome.

Choose the right time – Contrary to popular belief, there is a good time to ask for more money. Most people wait to have the remuneration discussion at review time, when managers are typically: inundated with similar requests, restricted by end of year budgetary constraints, and focused on your “problem areas” in need of professional development.  Instead, initiate the conversation hot-on-the-heels of a clear and undeniable professional success (e.g. completing a project or exceeding a target). Choosing the appropriate time, gives your request legitimacy.

Make a list – Asking for a raise is about doing MORE than what is asked of you, it is about doing something EXTRA. Therefore, you should go to the meeting armed with a list of the ways in which you have personally added value and made a difference to the organization.  Include absolutely everything that you can think of and then prioritize them in order of weight to support your request.

Get the facts and figures – Gather evidence that supports your list of personal value-adds. Compile the results of the projects completed or measures you have implemented, emails evidencing praise from others in the organization, customer testimonials – whatever you need to demonstrate your value and contribution. Be informed on the salaries of comparable roles both in your organization and industry-wide.  This will assist you in tying the figure you request to a verifiable norm as opposed to a pie-in-the-sky figure.  Websites such as PayScale and GlassDoor may be helpful in establishing these market norms.

Practice makes perfect – Once you have done all of the background work, it’s time to practice! Try “playing it out” with a trusted friend or partner. If this doesn’t feel comfortable, you can record it on your phone or do it in front of the mirror. It is important to become comfortable with the words coming out of your mouth. Try to think about what your manager might say and practice responding to his/her hypothetical comments. Practice will make the actual conversation much more fluid, as the substance will flow more quickly in the face of anxiety.

Part 2: During the conversation

Resist your instincts (avoid complaints and ultimatums) – When you sense push back from your manager, you may be tempted to respond with threats of resignation, illicit knowledge of your colleagues’ pay and/or complaints regarding your (heavy) workload.  Avoid these impulses as they create an adversarial environment in which your manager will be defensive and far less likely to grant your request.  To avoid this, continue to build credibility in the conversation by tying your request back to the data you obtained and your list of value-adds.

Stay calm and collaborate – Asking for a raise can be a highly emotional experience as remuneration is closely linked with your sense of self worth and self-esteem.  To prevent emotions from taking over, try to imagine that you and your manager are on the same team.  Try to come up with some mutually beneficial solutions with your manager and be responsive to any needs/issues that s/he raises. The deal you strike should be flexible and fluid, walking in with a list of demands is not helpful.

Pitch the raise as step towards creating a future – A raise is likely to result in renewed commitment to both your manager and the organization. Remind your manager of this fact. Use the conversation as a segue into your hopes and dreams for the future (specifically those that will benefit the organization and your manager) and create an action plan in which you are both invested.

Preserve the relationship and be inquisitive – The point of having this conversation is to set yourself up for the future, not to take a step backwards. Accordingly, every move that you make in the negotiation should continue to build your credibility (even if your request is not granted). If you are rejected, ask your manager to spend some time explaining why and to expressly set out what is required of you in order to be eligible for the raise at a later time. Consider whether there is something that you need from your manager to be in a position where you are outperforming in your role (for example, a greater budget or additional staff).

Part 3: After the conversation

Be creative and have a back up plan – If your request is declined, make sure you have back up plan. In lieu of a raise, consider a package of options that are of low cost to the organization but high value to you.  For example, extra vacation time, stock options or more a flexible working arrangement. You may be able to “repackage” your request in terms of these alternate options.

By following these simple steps, you should be in a much better position to ask for that raise or to renegotiate the terms of your employment.  If, after going through the preparation, you don’t feel like you have a strong enough case, keep your notes and plan to revisit the issue when circumstances have changed.