Format and Confidentiality of an early case management Conference(EMC) In order to maximize the benefit of ECM it should be confidential pursuant to Evidence Code section 1119 et seq. Communications of this nature should be considered “in the course of a mediation or a mediation consultation (and) shall remain confidential.” [section 1119(c)]. (See comparable Federal Rule of Evidence 408.) A stipulation re confidentiality should be signed by counsel and parties before commencing the ECM process. To start the process, counsel who have agreed to use ECM contact a neutral facilitator/mediator. A conference call is convened by the facilitator/mediator with all participants to orient the facilitator/mediator to the basics: parties, counsel, issues and process. If beneficial under the circumstances of the case or issues, the facilitator/mediator may have brief telephone conferences with each counsel separately. Each counsel then circulates a proposed agenda for the ECM conference, and the facilitator/mediator issues a final agenda based on the proposed agendas of each counsel. In this way a structure for the process is established with the assurance that interests of each counsel will be addressed. An Early Case Management conference is then held between all participating counsel and the facilitator/mediator with the objective of reaching a facilitated agreement on all issues raised by each counsel. Needless to say, appearances by lead trial counsel are most productive and appearances by associates or contract counsel would be prohibited. In other words, only counsel with complete authority to bind their clients should participate. Anything less would lead to an unproductive ECM conference, and a mere repetition of what some attorneys now find in Superior Court CMCs. -