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Update on Major Changes Made at the January 28-29, 2000 Washington DC Meeting.
October 10, 2000
Hon. Michael B. Getty, Chair, NCCUSL Drafting Committee
Ms. Roberta Cooper Ramo, Co-Chair, ABA Dispute Resolution Section Drafting Committee
Hon. Chief Justice Thomas J. Moyer, Co-Chair, ABA Dispute Resolution Section Drafting Committee
Professors Nancy Rogers and Richard Reuben, Project Reporters, NCCUSL/ABA Uniform Mediation Act Project
c/o National Conference of Commissioners on Uniform State Laws
211 E. Ontario St. Suite 1300
Chicago, IL 60611
Re: August 2000 Draft of the Uniform Mediation Act
SUPPORT and REQUESTED CHANGES
Dear Chairman Getty, Co-Chairs Ramo and Moyer, Members of the ABA/NCCUSL Uniform Mediation Act Drafting Committees, and Committee Reporters,
SUPPORT FOR ENACTMENT. I am deeply appreciative that the Drafting Committees have been so responsive to public input, especially from those who actually practice mediation, and that there are now so many positive aspects to the proposed Uniform Mediation Act. Among these are:
1) establishing both an evidenciary exclusion in Section 5 and privileges in Sections 6 and 7, enabling mediation participants to speak candidly without fear of their own words being used against them in later court or similar proceedings,
2) providing in Section 8 that a waiver of these protections must be express not implied,
3) providing in Section 7 that a mediator may refuse to become a later witness against any mediation participant,
4) extending these protections in Section 3 (4) to cover the initial intake and case development discussions which are an integral part of the mediation process,
5) the clear statement in Section 3 (3) that a mediator may be a person from any profession or background, and perhaps most importantly,
6) the clear statutory prohibition in Section 10, stating that a mediator may not misuse what has been disclosed to him or her in confidence to prejudice a party's later rights in court by reporting the mediator's own opinions to a judge or other adjudicator.
Given the enormous progress made, I now believe that enactment of the UMA would be an important step forward in the many states that do not already have even stronger statutory protections for the integrity of the mediation process.
THREE CURRENT DRAFTING PROBLEMS. Unfortunately, there are still three places where I must respectfully request that serious problems with the language in the current draft be corrected.
1) NEW LANGUAGE UNDERCUTS PURPOSE - Section 5 (b).
New language makes the current draft read "A mediation communication that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation."
This draft's sudden change to using the new phrase "A mediation communication" in this section throws the entire scope of the confidentiality protections into a state of confusion. This must be changed. The intent of this section is to make it clear that evidence created outside the mediation proceeding, such as a preexisting document, does not become inadmissible simply by putting it on the table or referring to it in a mediation. This intent is completely non-controversial. As currently phrased in this draft, however, this clause would contradict the agreed central purpose of the Act.
The model for this language is the provision in Federal Rule of Evidence 408 on compromise negotiations. A current draft of 408 uses the proper term which is "evidence" . It states "This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations." The UMA should use the same term - "evidence".
REQUESTED CHANGE: Replace the phrase "A mediation communication that is otherwise admissible..." with "Evidence that is otherwise admissible..."
2) EXCEPTION TOO BROAD FOR "RECORD OF AGREEMENT" - Section 9 (a).
The current draft says "There is no privilege or prohibition against disclosure under Section 5, 6, or 7:
1) for a record of an agreement between two or more parties;..."
This proposed language is dangerously loose. This section's intent is to ensure that parties who intend to enter into binding settlement agreements, agreements to mediate, etc. may enforce these agreements if necessary. Section 3 (6) however, defines a "record" to include anything written or tape-recorded and could be interpreted to include almost any flip chart notes, mediator records, or other documents produced in the course of mediation.
Suppose the disputants don't reach a final settlement and they go to court. One makes a disputed claim that in the mediation they agreed on several facts, and on resolutions of some of their issues. 9(a)(1) could be interpreted to mean disputants can subpoena any alleged "record of agreement" including the mediator's notes or flip chart records of any facts, figures, partial terms or anything else alleged to have been agreed on in the mediation. They may even subpoena the mediator to testify about them, and claim this falls under an exception to privilege.
Trying to help parties agree on things is the essence of mediation. Do you really want mediation participants to think they are creating potential evidence any time anyone writes on the flip chart or makes notes of anything anyone supposedly agrees about? This would completely undercut candor and goes entirely contrary to the central purpose of the Act. 9 (a)(1) should be carefully narrowed to make records of agreements admissible only when disputants clearly intend to be agreeing to mediate or signing a settlement which they intend to be binding.
REQUESTED CHANGE: Change Section 9 (a) (1) to read:
"There is no privilege or prohibition against disclosure under Section 5, 6, or 7:
1) for an agreement to mediate, or for a written settlement agreement between two or more parties which is signed by those parties and which clearly states their intent that the agreement be admissible, enforceable, or binding ;...".
3) EXPEDITED ENFORCEMENT SHOULD NOT DEPEND ON MEDIATOR SIGNING AGREEMENT - Section 12 (a)
The current draft says "Parties entering into a mediated settlement agreement evidenced by a record executed by the parties, their attorneys, and the mediator may petition the [É.] court to enter a judgment in accordance with the settlement agreement, provided that..."
Mediators should not be required to become signatories to settlement agreements which parties want to enforce under this section. This section establishes a process for expedited enforcement of a mediated settlement as if it were a court judgment, with appropriate safeguards (any party may object for any reason, they must have counsel to explain the legal implications, and their counsel must sign the settlement, etc.).
The mediator is definitely not a party to the dispute, nor to any settlement the parties reach. Requiring the legal representatives of the parties to sign is entirely different that requiring the neutral mediator to "execute" the settlement to obtain expedited enforcement. It is a very serious mistake to give mediators the power to either bless or withhold expedited enforcement of a settlement. Further, the Act should not create any additional basis for a court to insist that the mediator (as a signer) testify about how a settlement should be interpreted. The mediator's testimony will inevitably benefit one side or the other.
REQUESTED CHANGE: Eliminate the phrase "and the mediator"
TROUBLING HOLES IN PROTECTIONS. There remain overall aspects of the Uniform Mediation Act which are deeply troubling. They deserve a lot of thought and discussion by everyone who cares about shaping the way our society will voluntarily resolve disputes in the future. The first is that there are approximately twelve different areas where the UMA intentionally excludes protections for mediation, and apparently voids even express agreements by parties to extend inadmissibility to these areas. The second related issue is the insistence on making the mediator a witness against parties in later trials in these areas.
1) DENIAL OF PROTECTIONS - Sections 3, 4, 9, and 13. The current draft intentionally denies protection to many types of mediation, many specific mediation communications, and many potential mediation participants that would otherwise benefit greatly from candid discussions in mediation. Proponents of these dozen exceptions and exclusions view certain mediation communications as evidence. They believe this evidence must be preserved for use in trial. Many of the exceptions and exclusions seem appropriate if viewed from the standpoint of preserving potential evidence which already exists. For instance, surely everyone would want to preserve evidence of elder abuse. In the real world, however, this "evidence" will never be created in the first place if people know they are creating evidence which could be used later against themselves. The effect in many of these areas will simply be to eliminate the candor which makes voluntary resolution possible.
The newly proposed Section 13 even codifies this denial of protections stating "(a) The parties cannot by agreement expand the scope of the [Act]... (b) The parties and mediator cannot by agreement expand the protections of the privileges provided....(d) The parties cannot by agreement waive the exceptions..."
Think about just a couple of examples of situations where enactment of the current draft of the Uniform Mediation Act would reduce the candor and undercut the voluntary resolutions which confidential mediations now produce in many states.
Look at mediation of one of the most common commercial disputes - a construction lawsuit between an owner and a contractor. In some states the confidentiality protections apply to all mediation participants, not just parties to the dispute as the UMA proposes. In these states (like mine) you can get the candid participation of third parties not yet named as parties to the dispute. The architect, for instance, is often a key player in providing information about what happened, what would really fix the problem, etc. Sometimes you also get expert witnesses to work together. You want their candid off-the-record insights about specific facts or potential repairs different than their full-blown court expert reports might say are required.
The current UMA draft's choice to give a privilege only to a "party" seems logical at first. But many desirable participants in mediation, like the architect in this example, are not willing to voluntarily define themselves as parties to the dispute at this stage, if they are not already named. That means that if they come to the mediation, anything they say may be used against them in court later if the owner and contractor decide to cooperate in suing the architect (and/or any other third party). Since third parties may later be named in a lawsuit if the matter does not settle, they will be advised by counsel not to participate candidly and probably not to participate at all.
Compounding this problem, anyone who might later be accused of "professional misconduct" in the mediation, including the architect, any licensed expert witness, any mediator, and any attorney, must also assume they are always speaking on the record in mediation. If anyone wants to later make any claim of "professional misconduct" against any of them based on their statements in mediation, the current UMA draft makes these admissible under the nonwaiveable exception in 9 (b).
Look at a second example of denied protections in a very common family situation. Picture a limited-means woman trying her best to care for her aged mother in her own home rather than sending her to the county nursing home. She is attempting a mediation with her mother and a concerned sibling who believes mother might do better in the nursing home. Under the current UMA draft, the woman cannot talk candidly with her mother or concerned sibling or even the mediator about any time she got overstressed and told her mother to feed herself, or may have roughly pushed her mother into her room. Any statement the woman makes, or her mother makes, in these areas might be used later against her in court to assert elder neglect. 9(a)(5) says there is no protection for "a mediation communication offered to prove...neglect [of an]... elderly adult protected by law."
Even if all participants want to agree in writing to fully confidential mediation of their problems in caring for an elderly parent, the proposed Section 13 would apparently void their agreement to inadmissibility. The proposed task force's additions (6, 3, c) might allow limited confidentiality. But this would only apply after the sibling actually brought an official complaint of elder abuse, or in a government program specifically set up to mediate these cases (if such a thing is actually established nearby) .
REQUESTED ACTION:
Carefully review the chilling effect on candor in the dozen areas where protection is deliberately denied.Carefully review the proposed Section 13 voiding parties' agreements to extend the Act's inadmissibility protections in these areas.
2) MEDIATOR SHOULD NOT BE A WITNESS AGAINST PARTIES LATER. The full NCCUSL Conference has just adopted the Revised Uniform Arbitration Act. This provides that arbitrators shall not become witnesses against anyone in later proceedings, or be required to provide their records. Section 14(d) states "In any judicial, administrative, or similar proceeding, an arbitrator or representative of an arbitration organization is not competent to testify or required to produce records as to any statement, conduct, decision, or ruling occurring during the arbitration proceeding to the same extent as a judge of a court of this State acting in a judicial capacity." Only two exceptions apply.
The UMA should contain the same language.There are compelling reasons why mediators, along with judges and arbitrators, should not become later witnesses. All states should adopt a statute providing that the mediator is incompetent to testify against any party later in court or in any other adjudicative proceedings (with appropriate exceptions). Once a mediator has received confidential communications from either side, once a mediator has been influenced by these communications which the other side has not heard, that mediator should not be able to go into court and testify against either party. As the Federal Ninth Circuit Court found in the Macaluso case (please see below), mediator testimony will inevitably tend to benefit one side over the other. Most importantly, a mediator should not be permitted to hint in confidential caucus that the mediator will make a really good witness for the other side if a certain proposed resolution is not accepted.
The mediator will always be an attractive potential witness where disputes do not settle. Both sides often develop a good relationship with the mediator. Each side naturally tends to believe the mediator's testimony will support its position. Judges find the neutral mediator the most credible witness. Unfortunately, the Drafting Committees have so far consistently refused widespread requests to add UMA language similar to the Revised Uniform Arbitration Act.
The current UMA draft appears to provide protection against a mediator receiving confidential information in caucus and then using this to testify against a party. Section 6 provides that either party may exercise their privilege to prevent "mediation communications" from coming in. Section 7 provides the mediator with an independent privilege to refuse to repeat statements made in mediation. But the UMA protection only uses the word "statements", whereas the Arbitration Act protections apply to "statements, "conduct" and "records". And none of the UMA protections would apply at all in the numerous situations deliberately excluded from coverage by the dozen exceptions and scope exclusions. Further, in the UMA hearings we heard the representative of the US Justice Department state that federal attorneys were being ordered by judges to waive their privileges, and that even the federal government attorneys felt they could not refuse.
From the beginnings of these hearings, the Drafting Committees have been urged by the mediation community to adopt language providing testimonial incompetency like that provided to arbitrators under the Revised Uniform Arbitration Act. Many people still believe that this is a crucial protection for the integrity of both the mediation process and due process in a later trial. The California Legislature unanimously adopted this protection in 1992. The following statement regarding our code is from my March 16, 1999 letter to the Drafting Committees, citing the National Labor Relations Board and Federal Ninth Circuit Court decisions on this issue. It still applies.
Cal Ev. Code Sec. 703.5 additionally guarantees that no mediator can testify for or against any party later in a civil proceeding if the matter does not settle. This is considered a critical protection guaranteeing the neutrality of the mediator and the process. As argued by counsel for California's State Mediation and Conciliation Service, the National Labor Relations Board and the Ninth Circuit Court of Appeals concluded that "the complete exclusion of mediator testimony is necessary" for effective mediation. (NLRB v. Macaluso, 618 F.Ed 51 (9th Cur. 1980), cited in the Draft"s Reporter"s Notes page 8, line 8) Sec. 703.5 states in relevant part that "...no mediator shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to [one]...that could...constitute a crime...or give rise to disqualification..."
REQUESTED ACTION:
Add a section with language similar to the Revised Uniform Arbitration Act Section 14(d)., Guarantee that a mediator will not later become a witness against any party in mediation (with appropriate safeguards) and will not be forced to produce mediator records.
Thank you again for the opportunity to comment and for the continuing work of the Drafting Committees.
Yours sincerely,
Ron Kelly
2731 Webster St.
Berkeley, CA 94705
510-843-6074
ronkelly@ronkelly.com
http://www.ronkelly.com
* Denotes provisions upon which Task Force recommendations may be found at end of the Draft.
SECTION 1. TITLE.
This [Act] shall be cited as the Uniform Mediation Act.
SECTION 2. APPLICATION AND CONSTRUCTION.
In applying and construing this [Act], consideration must be given to:
(1) the policy of fostering the prompt, economical, and amicable resolution of disputes in accordance with the principles of the integrity of the mediation process and informed self-determination by the parties;
(2) the need to promote the candor of parties and mediators through the protection of confidentiality, subject only to the need for disclosure to accommodate specific and compelling societal purposes; and
( 3) the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 3. DEFINITIONS. In this [Act]:
(1) "Mediation" means a process in which a mediator facilitates communications and negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute.
(2) "Party" means a person, other than a judicial official, who participates in a mediation and either has an interest in the outcome of the dispute that is the subject of the mediation or whose agreement is necessary to resolve the dispute.
* (3) "Mediator" means an individual, of any profession or background, who is appointed by a court or government entity or engaged by parties through an agreement evidenced by a record.
(4) "Mediation communication" means a statement made during a mediation or for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.
(5)"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(6) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(7) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
SECTION 4. SCOPE.
(a) Except as otherwise provided in subsections (b) and (c), this [Act] applies to all forms and types of mediations in which parties manifest their agreement to mediate in a written record, or are directed or requested by a court or governmental entity, in a written record, to participate in a mediation;
(b) This [Act] does not apply to the mediation of:
(1) disputes arising under, out of, or relating to a collective bargaining relationship; or
(2) disputes involving minors that are conducted under the auspices of a primary or secondary school.
SECTION 5. EXCLUSION FROM EVIDENCE AND DISCOVERY.
(a) A mediation communication is not subject to discovery or admissible in evidence in a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding, if it is privileged under Section 6 or 7, the privilege is not waived or precluded under Section 8, and there is no exception that prevents its disclosure under Section 9.
(b) A mediation communication that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.
SECTION 6. PARTY PRIVILEGE.
* A party has a privilege to refuse to disclose, and to prevent any other person from disclosing, mediation communications a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding.
SECTION 7. MEDIATOR PRIVILEGE.
A mediator has a privilege to refuse to disclose, and to prevent any other person from disclosing, a mediation communication of the mediator in a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding. A mediator also has a privilege to refuse to disclose evidence of mediation communications in such a proceeding.
SECTION 8. WAIVER AND PRECLUSION OF PRIVILEGE.
(a) The party privilege in Section 6 may be waived, but only if expressly waived by all parties, either in a record or orally during a judicial, administrative, or arbitration proceeding. A party who makes a representation about or disclosure of a mediation communication that prejudices another person in a judicial, administrative, or arbitration proceeding may be precluded from asserting the privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(b) The mediator's privilege in Section 7 may be waived, but only if expressly waived by all parties and the mediator, either in a record or orally during a judicial, administrative, or arbitration proceeding. A mediator who makes a representation about or disclosure of a mediation communication that prejudices another person in a judicial, administrative, or arbitration proceeding may be precluded from asserting the privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
SECTION 9. EXCEPTIONS TO PRIVILEGE.
(a) There is no privilege or prohibition against disclosure under Section 5, 6, or 7:
(1) for a record of an agreement between two or more parties;
* (2) for a mediation communication made during a mediation that is required by law to be open to the public;
(3) for a threat made by a mediation participant to inflict bodily harm or unlawful property damage;
(4) for a mediation participant who uses or attempts to use the mediation to plan or commit a crime;
(5) for a mediation communication offered to prove or disprove abuse, or neglect, abandonment, or exploitation in a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law.
(b) There is no privilege or prohibition under Section 5, 6, or 7 if a judicial, administrative, or arbitration tribunal or court finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the importance of this [Act's] policy favoring the protection of confidentiality and:
(1) the evidence is introduced to establish or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator, a party or a representative of a party based on conduct occurring during a mediation;
(2) the evidence is offered in a judicial, administrative, or arbitration proceeding in which fraud, duress, or incapacity is in issue regarding the validity or enforceability of an agreement evidenced by a record and reached by the parties as the result of a mediation, but only if evidence is provided by a person other than the mediator of the dispute at issue; or
(3) for a mediation communication that evidences a significant threat to public health or safety.
(c) If a mediation communication is admitted under subsection (a) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure shall be admitted. The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose.
SECTION 10. [DISCLOSURE, NON-DISCLOSURE BY THE MEDIATOR.]
(a) Before commencing a mediation, a mediator shall make an inquiry that is reasonable under the circumstances to determine whether there are any facts that a reasonable person would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationships with a party or foreseeable participant in the mediation. The mediator shall disclose any such fact known or learned by the mediator to the parties as soon as is practical.
( b) A mediator may not provide a report, assessment, evaluation, recommendation, or finding regarding a mediation to a court, agency, or authority that may make a ruling on or investigation into a dispute that is the subject of the mediation, other than whether the mediation occurred, a report of attendance at mediation sessions, whether the mediation has terminated, and whether settlement was reached, except as permitted under Sections 8 and 9.
(c) If asked by a party, a mediator shall disclose the mediator's qualifications to mediate a dispute.
SECTION 11. PARTY CHOICE OF ACCOMPANYING INDIVIDUAL.
A party has the right to have an attorney or other individual designated by the party attend and participate in the mediation. A waiver of this right may be rescinded.
[SECTION 12. OPTIONAL SUMMARY ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.
(a) Parties entering into a mediated settlement agreement evidenced by a record executed by the parties, their attorneys, and the mediator may petition the [É.] court to enter a judgment in accordance with the settlement agreement, provided that:
(1) All parties to the settlement agreement are represented by counsel at the time of settlement;
(2) The settlement agreement contains a statement to the effect that the parties are all represented by counsel and desire to seek summary enforcement of their agreement,
(3) Notice is given to all parties within [30] days of the filing of this petition;
(4) The agreement does not relate to a divorce or dissolution; and
(5) No party to the agreement files an objection with the court within [30] days of receipt of this notice.
(b) The court may enter judgment if:
(1) the provisions of subsection (a) are met;
(2) no party has filed an objection; and
(3) no party has made a showing of corruption, fraud, or duress.
(c) The judgment may be recorded, docketed and enforced as any other judgment in a civil action.]
[SECTION 13. EFFECT OF AGREEMENTS; NONWAIVEABLE PROVISIONS.
(a) The parties cannot by agreement expand the scope of the [Act] defined in Section 4.
(b) The parties and mediator cannot by agreement expand the protections of the privileges provided in Sections 6 and 7.
(c) The parties and mediator can by agreement waive the mediation privilege protections of Sections 6 and 7, as provided in Section 8.
(d) The parties cannot by agreement waive the exceptions to the mediation privilege provided in Section 9.
(e) The parties and mediator can by agreement expand the nondisclosure of mediation communications, except as disclosure is required by a court, administrative agency, or arbitration under Sections 5, 6, 7, 8, and 9, or is required under contract law.
(f) The parties by agreement may vary the requirements of Sections 10(a) and (d), but may not vary the requirements of subsection 10( c) and Section 11.]
SECTION 14. SEVERABILITY CLAUSE.
If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.
SECTION 15. EFFECTIVE DATE.
This [Act] takes effect ...............
SECTION 16. REPEALS.
The following acts and parts of acts are hereby repealed:
TASK FORCE PROPOSALS FOR CHANGES
Task Forces appointed by the Chair have suggested the changes listed below. The Drafting Committees have not yet acted on the proposed changes. After a brief discussion of the mission of the Task Force, the current black letter text is presented, with Task Force recommended language included in italic type.
SECTION 3. DEFINITIONS
A Task Force appointed by the Chair recommends including the concept of mediator impartiality in the definitions section, both amending the definition of mediator to include the word "impartial" as follows, and in providing a separate new definition of impartial.
(3) "Mediator" means an impartial individual, of any profession or background, who is appointed by a court or government entity or engaged by parties through an agreement evidenced by a record.
(x) "Impartial" means freedom from favoritism or bias, either by word or by action, and a commitment to serve all parties.
The Reporter's Working Notes for the new definition of impartiality would reflect that the language is substantially similar to the definition of mediation approved by the Society of Professionals in Dispute Resolution in another setting.
SECTION 6. PARTY PRIVILEGE
The Drafting Committees have been considering the addition of language to address two special situations. Subsection 2 makes the privilege applicable in juvenile or adult felony
proceedings, but only if the mediation is conducted by a program that a state has designated as one deserving special protection. The bracketed statement alerts each state to designate the programs to be covered. Subsection 3 makes the privilege applicable in proceedings related to the protection of certain vulnerable persons. It should be read in connection with Section 9 (a) (5), which otherwise makes exception for these proceedings. The purpose is to allow states to provide for and encourage these special mediation programs while following the more typical state approach of leaving admissions of abuse admissible in such proceedings if made in other mediation settings. The following italicized language represents how the text of Section 6,
Party Privilege, would read with provisions delineating these two specific contexts.
A party has a privilege to refuse to disclose, and to prevent any other person from disclosing, mediation communications in:
(1) a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding.
(2) a criminal or juvenile delinquency proceeding related to the matter mediated by [states to insert designated programs] unless a court determines after a hearing in camera that the evidence is otherwise unavailable and that an injustice would occur of such a magnitude as to outweigh the state's policy favoring confidentiality in mediation.
(3) a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law, if
(A) the case is referred by a court [or possible insertion of other officials];
(B) the public agency participates in the mediation; or
(C) the case being mediated involves allegations of abuse, neglect, abandonment, or exploitation of these protected persons and the mediation was conducted by a program supported by public funds to mediate such cases.
SECTION 9. EXCEPTIONS TO THE PRIVILEGE.
A. Section 9(a)(2) currently addresses so-called public policy mediations, i.e., mediations that involve a governmental party. The Draft provision currently reads:
(2) for a mediation communication made during a mediation that is required by law to be open to the public;
A task force appointed by the Chair has suggested that the Drafting Committees modify the current language to read as follows:
(2) for a mediation communication that is made in a session of a mediation that is open to the public or pursuant to an open meeting or open records law.
B. The Drafting Committees have been considering inclusion of language referring to proposed Section 6. The revised section, with changes in italics, would read:
(5) for a mediation communication offered to prove or disprove abuse, or neglect, abandonment, or exploitation, except as provided in Section 6 (3), in a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law.
SECTION 10. [DISCLOSURE, NON-DISCLOSURE BY THE MEDIATOR.]
A Task Force appointed by the Chair has recommended a provision that would complement task force recommendations regarding the use of the word "impartial" in the definition of "mediator," and the related recommended definition of "impartial," with the following new provision to address the consequences of a finding that a mediator was not "impartial."
(x) The protections of this [Act] do not apply to a mediation if a mediator is not impartial, unless a party reasonably believed the mediator to be impartial. However, if a party reasonably believed the mediator to be impartial, then the party shall have the protections of the [Act].
Do you know what it would do to your mediations if the current Uniform Mediation Act became law tomorrow in your state? The UMA aims to change the way your state defines mediation, what the confidentiality protections are, how mediations are conducted, and how settlements may be enforced.
Do you know that the last scheduled meeting of the UMA drafting committees is taking place March 31- April 2? Final adoption is scheduled for later this year. Please read and analyze the latest draft carefully (March 2000). No one else may catch the implications of what you spot. Please immediately point out problems to the drafting committee members and to your organizations. This may be your last chance. Full text, contact information for key drafters and your state's Uniform Law Commissioners, background information and more at <http://www.ronkelly.com>
Here are just three examples of apparently serious problems with the language of the current draft:
1) Section 8(a)(1) says confidentiality protections won't exist for "a record of agreement between two or more disputants". Section 3 (g) says a record includes anything written or tape-recorded. Suppose the disputants don't reach a final settlement and they go to court. 8(a)(1) could be interpreted to mean disputants can subpoena everyone's notes or flip chart records of the facts or figures they supposedly agreed on. Do you really want mediation participants to think they are creating evidence any time anyone makes notes of anything said? Shouldn't the proposed statutory language be carefully narrowed to clearly admit only those agreements the disputants make when they clearly intend to be speaking on the record or signing an admissible settlement?
2) Section 4(b)(1) currently says the Act "shall not apply to the mediation of disputes arising under, out of, or relating to a collective bargaining relationship..." This could be interpreted to mean a workplace mediation isn't confidential under the act if the dispute involves a union member. Suppose you are a meditator in a university or agency or corporate mediation program. You are mediating an alleged harassment dispute involving both unionized and nonunion employees. Do different laws apply depending on who is in the room at any given time? Is everything said on the record? Doesn't this need to be clear?
3) Section 8(a)(6) currently says there is no confidentiality protection "for mediation communications in a pretrial conference conducted by a judge or other judicial officer who may make or inform rulings on the subject matter of the mediation". Won't some judges interpret this to mean they can order you to repeat everything said in mediation? How will it affect mediation if everyone thinks the mediator will be providing an evaluation of whose case has merit or which discovery motions should be approved? Some courts did set up mediation programs which required mediators to submit secret reports to the judge on exactly these issues. Section 7(b) tries to guarantee that the mediator remains neutral and does not report to the judge the mediators opinion of who should win or lose or who admitted what in the mediation. The enormous exception in the current 8(a)(6) could be interpreted to seriously undercut this important protection. Your mediator will be a very credible source of information against you. Shouldn't 8(a)(6) be eliminated or rewritten?
Please believe that you need to make time to read this draft very carefully yourself, very soon. Don't think someone else will catch everything and fix it. Again, this could be your last chance.
SECTION 1. TITLE.
This [Act] shall be cited as the Uniform Mediation Act.
SECTION 2. APPLICATION AND CONSTRUCTION.
In applying and construing this [Act], consideration must be given to:
(a) the policy of fostering the prompt, economical, and amicable resolution of disputes in accordance with the principles of integrity of the process and informed self-determination by the disputants,
(b) the need to promote the candor of disputants and mediators through the protection of confidentiality, subject only to overwhelming need for disclosure to accommodate compelling and specific societal purposes, and
(c) the need to promote uniformity of the law with respect to its subject matter.
SECTION 3. DEFINITIONS.
(a) "Disputant" means a person who participates in mediation and:
(1) has an interest in the outcome of the dispute or whose agreement is necessary to resolve the dispute, and
(2) is asked by a court, governmental entity, or mediator to appear for mediation or entered an agreement to mediate that is evidenced by a record.
(b) "Mediation" means a process in which disputants in a controversy, with the assistance of a mediator, negotiate toward a resolution of the conflict that will be the disputants' decision.
(c) "Mediation communication" means a statement made as part of a mediation. The term may also encompass a communication for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.
(d) "Mediator" means an impartial individual of any profession or background, who is appointed by a court or government entity or engaged by disputants through an agreement evidenced by a record.
(e) "Public policy mediation" means a mediation in which a governmental entity is a participant, and which leads to a decision by the entity that has general application and prospective effect.
(f) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(g) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(h) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
SECTION 4. SCOPE.
(a) Except as provided in subsection (b), this [Act] extends to all forms and types of mediation.
(b) This [Act] shall not apply to the mediation of:
(1) disputes arising under, out of, or relating to a collective bargaining relationship; or
(2) disputes involving minors that are conducted under the auspices of a primary or secondary school.
SECTION 5. EXCLUSION FROM EVIDENCE AND DISCOVERY; PRIVILEGE.
(a) Mediation communications are not subject to discovery or admissible in evidence in a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding, if they are privileged under subsections ( c) and (d), the privilege is not waived or estopped under Section 6, and there is no exception under Section 8.
(b) Information otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in mediation.
( c) A disputant has a privilege to refuse to disclose, and to prevent any other person from disclosing, mediation communications in:
(1) a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding,;
[(2) a criminal or juvenile delinquency proceeding related to the matter mediated if:
(i) a court or law enforcement official referred that case to mediation; or
(ii) the mediation was done by a program supported by public funds to mediate criminal or juvenile cases;
[unless a court determines after a hearing in camera that the evidence is otherwise unavailable and that a miscarriage of justice would occur of such a magnitude as to substantially outweigh the state's policy favoring confidentiality in mediation.]
[(3) a proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law, if
(i) the case is referred by the court,
(ii) the public agency participates in the mediation, or
(iii) the case involves allegations of abuse, neglect, abandonment or exploitation and is mediated by an entity that is charged by law or a court to mediate such cases.]
(d) A mediator has a privilege to refuse to disclose, and to prevent any other person from disclosing, the mediator's mediation communications, in a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding. A mediator may also refuse to provide evidence of mediation communications in such a proceeding.
SECTION 6. WAIVER AND ESTOPPEL.
(a) The disputants' privilege in Sections 5 ( c) may be waived, but only if expressly waived by all disputants, either in a record or during a judicial, administrative, or arbitration tribunal. A disputant who makes a representation about or disclosure of a mediation communication that prejudices another person in a proceeding may be precluded from asserting the privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(b) The mediator's privilege in Section 5 (d) may be waived, but only if expressly waived by all disputants and the mediator, either in a record or during a civil proceeding before a judicial, administrative, or arbitration tribunal. A mediator who makes a representation about or disclosure of a mediation communication that prejudices another person in a proceeding may be precluded from asserting the privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
SECTION 7. NONDISCLOSURE OUTSIDE OF DISCOVERY AND EVIDENTIARY PROCEEDINGS.
(a) In addition to the prohibitions regarding proceedings described in Sections 5 and 6, a mediator may not disclose mediation communications unless all of the disputants agree, or the mediator reasonably believes that disclosure is required by law, a specific public policy established by statute or court decision, or professional reporting requirements.
(b) A mediator may not provide a report, assessment, evaluation, recommendation, or finding regarding a mediation to a court, agency, or authority that may make rulings on or investigations into a dispute that is the subject of the mediation, other than whether the mediation occurred, a report of attendance at mediation sessions, whether the mediation has terminated, or whether settlement was reached, except as permitted under Sections 6 and 8.
[(c) This [Act] does not restrict the disclosure of mediation communications by disputants outside of discovery and evidentiary proceedings except as may be limited by the agreement of the disputants, or by court or administrative order.]
SECTION 8. EXCEPTIONS TO PRIVILEGE AND NONDISCLOSURE.
(a) There is no privilege or prohibition against disclosure under Sections 5, 6, or 7 of this [Act]:
(1) for a record of an agreement between two or more disputants;
(2) for the sessions of a mediation that must be open to the public under the law, or for sessions of a public policy mediation for which the disputants have no reasonable expectation of confidentiality;
(3) for threats made by a participant to inflict bodily harm or unlawful property damage;
(4) for any mediation participant who uses or attempts to use the mediation to plan or commit a crime;
(5) for mediation communications offered to prove or disprove abuse or neglect, except as provided in Section 5 (c)(3), in a proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law, or
[(6) for mediation communications in a pretrial conferences conducted by a judge or other judicial officer who may make or inform rulings on the subject matter of the conference.]
(b) There is no privilege or prohibition under Sections (5), (6), or (7) of this [Act] if a judicial, administrative, or arbitration tribunal finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the importance of the state's policy favoring the protection of confidentiality and:
(1) the evidence is introduced to establish or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator, a disputant or a representative of a disputant based on conduct occurring during a mediation;
(2) the evidence is offered in a proceeding in which fraud, duress, or incapacity is in issue regarding the validity or enforceability of an agreement evidenced by a record and reached by the disputants as the result of a mediation, but only if evidence is provided by persons other than the mediator of the dispute at issue; or
(3) for mediation communications that evidence a significant threat to public health or safety.
(c) If mediation communications are admitted under subsection (a) or (b), only the portion of the communication necessary for the application of the excepted purpose shall be admitted. The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose.
SECTION 9. MEDIATION PROCEDURES.
(a) Before accepting appointment or engagement a mediator shall make an inquiry that is reasonable under the circumstances to determine whether there are any facts that a reasonable person would consider likely to affect the impartiality of the mediator, including any financial or personal interest in the outcome of the mediation or existing or past relationships with a disputant or any known or foreseeable participant in the mediation. The mediator shall disclose such facts known or learned to the disputants as soon as is practical.
(b) If asked by a disputant, a mediator shall disclose the mediator's qualifications to mediate a dispute.
(c) A disputant has the right to have an attorney or other individual designated by the disputant attend and participate in the mediation. A waiver of this right may be revoked.
SECTION 10. SUMMARY ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.
(a) A disputant entering into a settlement agreement evidenced by a record made during mediation, or as a result of mediation may, with the consent of all disputants to such agreement. petition a court of general jurisdiction to enter a judgment in accordance with the settlement agreement, provided that:
(1) A petition requesting such judgment is filed with the court within [30] days of the execution of such mediated settlement agreement;
(2) Written and legally sufficient notice is given to all disputant signatories to the agreement within [30] days of the filing of such petition; and
(3) No disputant to the agreement files an objection with the court within [30] days of receipt of such notice or execution of waiver of notice.
( b) If the court finds that an objection has been filed as provided in subsection 10 (a)(3), that a disputant failed to understand the rights being waived and that the settlement agreement was not signed by the disputant and the disputant's attorney, or that the interests of justice require, the court shall deny such petition, without prejudice to any contractual rights or remedies that may otherwise be available.
(c) If on motion of any of the disputant signatories to the settlement agreement, the court finds that the provisions of subsection 10 (a) have been met, and the provisions of subsection 10 ( c) do not preclude entry, the court shall enter judgment in the terms set forth in the mediated settlement agreement.
SECTION 11. SEVERABILITY CLAUSE.
If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.
SECTION 12. EFFECTIVE DATE.
This [Act] takes effect ...............
SECTION 13. REPEALS. The following acts and parts of acts are hereby repealed:
January 20, 2000
Chairman Michael Getty
NCCUSL and ABA Drafting Committees on the Uniform Mediation Act
211 East Ontario St. Ste. 1300
Chicago, Illinois 60611
Re: Requested Revisions to January 2000 UMA Draft
Dear Chairman Getty,
This latest January draft is a vast improvement over previous drafts. I am genuinely impressed with the willingness of the Drafting Committees to make major changes to the December Draft at our last meeting in Monterey. I hope that a similar openness prevails at the January meeting.
I must however, also express my deep disappointment that you would bar public distribution of this January Draft until only five working days remain before the Drafting Committee meeting January 28. Five days is clearly insufficient time for the public to find out about this draft, distribute it to affected mediators and users, obtain comments, draft responses and transmit them to the Committees for consideration. If the NCCUSL Executive Director's statement at the December meeting is accurate, this is the last drafting committee meeting at which substantive changes will be seriously considered. The final meeting in March, he said, is for the purpose of polishing and finalizing the draft before it goes to the full national conference for final reading.
I respectfully request the following revisions (shown in capital letters) to three key portions of the January Draft, for reasons expressed many times in prior letters and at hearings. The general point is that to be effective, mediation confidentiality must be certain, predictable, and apply to the widest range of mediation communications.
I further respectfully request that you consider amending the Uniform Mediation Act to include sections tracking those in California law cited below. These would include a clear ban on mediators testifying against any party later in court, defining clearly when the evidentiary exclusion for mediation ends, ensuring that all present in a mediation could speak candidly (not just those defined as disputants) and other key aspects deemed necessary for the comprehensive mediation act already adopted in our state.
Yours sincerely,
Ron Kelly, Mediator
2731 Webster St.
Berkeley, CA 94705
510-843-6074
ronkelly@ronkelly.com
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SECTION 1. DEFINITIONS. In this [Act:]
(3) "Mediation communication" means ANY statement OR OTHER COMMUNICATION made as part of a mediation. The term SHALL also encompass a communication for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.
SECTION 2. CONFIDENTIALITY: PRIVILEGE; WAIVER; EVIDENTIARY AND DISCOVERY EXCLUSION; NONDISCLOSURE; EXCEPTIONS.
(b) A mediator has a privilege to (REMOVE CURRENT FOLLOWING BRACKETS TO REINCLUDE MEDIATOR'S CONTROL OF MEDIATOR'S OWN CANDID VOICE MESSAGES, EMAILS, LETTERS, STATEMENTS, ETC.) refuse to disclose, and to prevent any other person from disclosing, the mediator's mediation communications and may refuse to provide evidence of mediation communications in a civil judicial, administrative, or arbitration proceeding....
A mediator may not disclose mediation communications unless all PARTICIPANTS IN THE MEDIATION EXPRESSLY agree, IN WRITING. A mediator also may not make ANY report, assessment, evaluation, recommendation, or finding OF ANY KIND regarding a mediation, to ANY COURT OR OTHER ADJUDICATIVE BODY, OR TO a judge, agency, or authority that refers the matter to mediation or employs that mediator and that may make rulings on or investigations into the dispute that is the subject of the mediation. NO COURT, ADJUDICATIVE BODY, OR INVESTIGATING AUTHORITY MAY CONSIDER ANY SUCH REPORT BY THE MEDIATOR. THIS PROHIBITION SHALL NOT APPLY TO A REPORT THAT STATES ONLY WHETHER A PARTICIPANT APPEARED AT A MEDIATION AND WHETHER AN AGREEMENT WAS REACHED.
(c) Mediation communications are not subject to discovery or admissible in evidence in a civil, arbitration, or administrative tribunal if they are privileged UNDER THIS SECTION, UNLESS THE PROTECTIONS ARE EXPRESSLY waived IN WRITING BY ALL PARTICIPANTS.
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Significant Points Not Yet Covered by the UMA
Following are relevant excerpts from the California Evidence Code provisions defining and governing mediation. If you are interested in adoptability in California, I urge you to consider why we enacted the following sections, many of which are not yet reflected in the UMA, and to further consider some of our legislative intent language for inclusion in the Reporter's Notes.
§ 703.5 "...no mediator shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to [one]...that could...constitute a crime...or give rise to disqualification under... § 170.1 [(a) (1) or (6)] of the C.C.P."
§ 1115 Definitions ...(b) "Mediator" means a neutral person who conducts a mediation...[and] includes any person designated by a mediator...to assist...
CLRC Comment ... the definition is broad...it would include a mediation conducted as a number of sessions, only some of which involve the mediator...[it] focuses on the nature of a proceeding, not its label...An attorney or other representative of a party is not neutral and so does not qualify as a "mediator"...A person may be a "mediator" under this chapter even though the person has a different title, such as "ombudsperson." Any person who meets the definition of "mediator" must comply with Sec. 1121...which...prohibits a mediator from reporting to a court or other tribunal...
RK Note: We have seen mediators' case administrators and secretaries subpoenaed to depositions, so we included assistants in the definition of mediator. Is there any protection against this under the current UMA draft? Our legislative intent language is also important here regarding a person's attorney or other representative claiming to "mediate", and regarding the prohibition on mediator reporting (California Law Revision Comments may be considered evidence of legislative intent.)
§ 1117 Scope of Chapter ...(b) This chapter does not apply to...(2) A settlement conference pursuant to Rule 222 of the California Rules of Court.
CLRC Comment ...(b)(2) establishes that a court settlement conference is not a mediation within the scope of this chapter.
§ 1118 Recorded Oral Agreement An oral agreement [must satisfy]...all of the following conditions: (a) The oral agreement is recorded by a...reliable means...(b) The terms...are recited...in the presence of the parties and the mediator, and the parties [agree] on the record...(c) [They] expressly state...that the agreement is enforceable or binding or words to that effect. (d) The recording is reduced to writing and...signed by the parties within 72 hours...
§ 1120 Types of Evidence Not Covered ...(b) This chapter does not limit...(1) The admissibility of an agreement to mediate...[or] (2)...an agreement not to take a default or...to extend the time within which to act...in a pending civil action [or] (3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute. CLRC Comment...(b)(3) makes clear that § 1119 does not preclude a disputant from obtaining basic information...which may be significant in selecting an impartial mediator.
§ 1121 Mediator Reports and Communications Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing...
CLRC Comment...applies to all types of adjudications, including arbitrations and administrative adjudications,...the focus is on preventing coercion...a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decisionmaker on the merits of the dispute or reasons why mediation failed to resolve it...[A] mediator should not have authority to resolve or decide the mediated dispute, and should not have any function for the adjudicating tribunal with regard to the dispute, except as a non-decisionmaking neutral...A mediator's report...may disclose mediation communications only if...all persons who participate...agree to the disclosure...
§ 1122 Disclosure by Agreement (a) A [mediation] communication...is not made inadmissible...by...this chapter if either...:(1) All persons who conduct or otherwise participate in the mediation expressly agree...[or] (2) The communication...was prepared by or [for]...fewer than all the mediation participants, those participants expressly agree...and the communication...does not disclose anything said or done...in the...mediation. [For expert reports, photos, etc.] (b)...if the neutral person who conducts a mediation...agrees...that agreement also binds any other person [assisting]...
CLRC Comment... mediation...communications may be admitted or disclosed only upon agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation...Agreement must be express, not implied...[Para.] (a)(2)...only applies [if] those materials [reveal] nothing about the mediation discussion.
RK Note: 1122 (b) was added at the insistence of our State Bar Committee on the Administration of Justice. They argued that expensive expert reports prepared for the mediation should be under the control of the persons paying for them and able to be used in court later - especially if they document conditions since changed.
§ 1123 Written Settlement Agreements Reached Through Mediation A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible...if...signed by the settling parties and...[it states that] (a)...it is admissible or subject to disclosure, or...(b)...enforceable or binding or words to that effect. [or] (c) [they]...expressly agree...to its disclosure.[or] (d) [It] is used to show fraud, duress, or illegality...
CLRC Comment For guidance on binding a disputant to a written settlement agreement, see Williams v. Saunders, 55 Cal. App. 4th 1158, 64 Cal. Rptr. 2d 571 (1997) ("The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent."). See also Ryan v. Garcia, 27 Cal. App. 4th 1006, 1012, 33 Cal. Rptr. 2d 158, 162 (1994) (Section 1152.5 "provides a simple means by which settlement agreements executed during mediation can be made admissible in later proceedings," i.e., the "parties may consent, as part of a writing...").
§ 1124 Oral Agreements Reached Through Mediation
CLRC Comment... Except in [the above] circumstances, Sections 1119 (mediation confidentiality) and 1124 codify the rule of Ryan v. Garcia...(mediation confidentiality applies to oral statement of settlement terms), and reject the contrary approach of Regents of University of California v. Sumner, 42 Cal. App. 4th 1209, 50 Cal. Rptr. 2d 200 (1996)...
RK Note: Our legislative intent language makes clear that the reasoning used in the Regents of University of California v. Sumner case cited in the UMA Reporter's Notes has been rejected by our legislature.
§ 1125 When Mediation Ends (a) For purposes of confidentiality under this chapter, a mediation ends when...(1) The parties execute a written settlement agreement that fully resolves the dispute [or (b)(1) partially resolves it]. [or] (2) An oral agreement that fully resolves the dispute [or (b)(2) partially resolves it] is reached in accordance with Section 1118. [or] (3) The mediator provides the mediation participants with a writing signed by the mediator that states that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121.[or](4) A party provides the mediator and the other mediation participants with a [similar] writing...In a mediation involving more than two parties, the mediation may continue...[or] (5) For 10 calendar days, there is no communication between the mediator and any of the parties...relating to the dispute. The mediator and the parties may [modify this]...by agreement.
RK Note: Defining when the evidentiary exclusion ended was considered crucial by our Law Revision Commission and by the Consumer Attorneys of California.
§ 1127 Attorney's Fees If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing, as defined in Section 250, and the court or other adjudicative body determines that [this]...is inadmissible under this chapter...the court or adjudicative body...shall award reasonable attorney's fees and costs to the mediator...
§ 1128 Irregularity in Proceedings Any reference to a mediation during any subsequent trial is an irregularity in the proceedings [under]...Sec. 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding...and granting a new or further hearing...if the reference materially affected [a party's] substantial rights...
The Drafting Committees moved a great deal toward a Uniform Mediation Act which they hoped could be supported by the mediation community, and enacted in the majority of states. The drafters tried to make a clear choice that mediation would not be a place where disputants went to create more evidence to use against each other.
Mediators and mediation users, many of whom have previously strongly opposed adoption of the UMA, will want to carefully consider whether these revisions satisfy most of their previous concerns. They will also want to focus immediately on what other major changes, if any, they need. One last drafting committee meeting is scheduled before the Act is to go to final reading at the full national Uniform Law Conference. This last meeting is scheduled for March 31 through April 2 in Ft. Lauderdale.
Mounting opposition to key sections of previous drafts came from national ADR organizations, state organizations, large provider organizations like AAA and JAMS, and bar association ADR committees. Much of it focused on the need for predictability of the confidentiality protections. Politically-organized mediators in many states were already gearing up to try to defeat the UMA, based on their readings of earlier drafts. For example, the California Dispute Resolution Council recently told its members that the UMA "threatens to dismember mediation confidentiality as we know it in California". Many of the drafters apparently felt that very significant changes had to be made if they wanted the act to be enactable in the majority of states.
For more than a year, the drafters have repeatedly revised the act, trying to satisfy divergent voices opposing the act from opposite directions on the key issue of confidentiality. Many mediators and experienced users, including at least one past president of the Uniform Law Conference, saw the act as too weak and too full of exceptions. They focused on the act's effect on the mediation process, and the harm that will result if confidentiality is uncertain. Other voices, often represented at the drafting committee meetings by another past president of the Uniform Law Conference, Phil Carroll, and by ABA Litigation section representative, Steve Hochman, viewed the act from the perspective of the courtroom. They saw it as "excluding evidence from the truth-seeking process". They opposed mediation confidentiality for joint sessions which are conducted "in the presence of the enemy".
At their Washington DC meeting, the UMA drafters apparently made a clear choice. A central purpose of the act was to encourage greater use of early mediation, and nearly all cases are settled before trial. They appeared to conclude that wider use of early mediation would serve the overall public good, even though most statements by disputants in mediation would be excluded from evidence in the few cases that do go on to trial.
Highlights of some of the major changes adopted by the Drafting Committees include:
1. "Manifest Injustice". At the request of Jose Feliciano, past chair of the ABA ADR Section, the drafters removed the hotly disputed section allowing a judge to toss out confidentiality protections for undefined "extraordinary circumstances". This section was a rewrite of the "manifest injustice" provision removed at the previous meeting and attracting some of the strongest opposition by mediation organizations. (Old January Draft section 2 f 6)
2. Immunity. At the request of the Academy of Family Mediators and many other ADR organizations, the drafters removed the section which would have invalidated "the disputants' right to agree to mediator immunity from suit", as AFM put it. Earlier drafts contained even stronger prohibitions against immunity, attempting to head off the growing number of states which are granting civil immunity to mediators. (Old January Draft section 3 b)
3. Interpretation. At the request of Geraldine Soat Brown and the Chicago Bar Association ADR Committee, the drafters added a new section directing courts to construe the act in accordance with specific principles. These include notably "the need to promote the candor of disputants and mediators through protection of confidentiality, subject only to overwhelming need for disclosure to accommodate specific societal purposes." (New Draft section 4)
4. Organization. At the suggestion of Elizabeth Kent, Uniform Law commissioner from Hawaii, the drafters reorganized the act for clarity into ten new sections, and reorganized the evidenciary exclusion and privilege section to state the general evidenciary exclusion first. The expanded legal framework of the protections, as both an evidenciary exclusion and a clearly-stated privilege, was a key decision made at the December meeting in Monterey. (New draft section 5)
5. Mediator Candor. At the urging of Ron Kelly, an observer from California, the drafters strengthened confidentiality protections by reinstating a mediator's ability to keep confidential the mediators own communications (letters, emails, voice messages, etc.). (New draft section 5 c)
6. Criminal Proceedings. At the request of Judith Saul, an ABA ADR section drafting committee member from New York, the drafters reinstated an optional provision extending the act to protect mediation communications from being introduced in later criminal misdemeanor proceedings. Such optional clauses are contained in bracketed language in the final act. The drafters also added language intended to protect mediation communications in later criminal or juvenile delinquency proceedings if the mediation is conducted by programs specifically authorized to mediate these cases. (New draft section 5 a, c, d and e)
7. Collective Bargaining. At the urging of Barbara Brown and other members of the labor and employment bar, especially from New York, the drafters removed collective bargaining disputes from coverage by the act. (New draft section 3 b i )
8. Peer Mediation. At the urging of Jack Hanna and Elizabeth Donahue, mediators active in the development of school programs, the drafters removed peer mediation programs conducted by schools from coverage by the act. (New draft section 3 b ii)
9. Settlement Coercion and Mediator Reporting. At the request of Ron Kelly, the drafters strengthened and clarified protections against settlement coercion by the mediator and by judges.The redrafted section also helps ensure that disputants' later rights in court are not prejudiced by what a meditator might report about them or the merits of their case. (New draft section 7 b)
10. Reporting Child Abuse. At the request of Greg Firestone of Florida, representative from the Academy of Family Mediators, the drafters directed that the section prohibiting mediator disclosure of mediation communications be redrafted and clarified. The redraft is intended to allow mediators to decide that protecting the best interests of children outweighed the need for confidentiality and to report suspected instances of child abuse or abandonment, unless the process is specifically to mediate those claims and done by an authorized entity (New draft section 7 a)
11. Settlement Enforceability. At the direction of the NCCUSL conference at the act's first reading last July, the drafters added a section allowing disputants to confirm and enforce a mediated settlement agreement like a court judgment if no one objects after thirty days. The mechanism is similar to those providing that an arbitration award may be confirmed as a court judgment without the disputants' having to file a lawsuit first. (New draft section 10)
* * * * *
Ron Kelly is an official observer to the Uniform Mediation Act Drafting Committees. He has been actively involved in the formation of mediation law, court rules and administrative regulations for over ten years. He mediates and arbitrates business cases through his Berkeley offices. He welcomes comments at 510-843-6074, ronkelly@ronkelly.com, or through www.ronkelly.com. Permission is granted to copy and reprint this article with credit.
SECTION 1. DEFINITIONS. In this [Act:]
(1) "Disputant" means a person who participates in mediation and:
(A) has an interest in the outcome of the dispute or whose agreement is necessary to resolve the dispute, and
(B) is asked by a court, governmental entity, or mediator to appear for mediation or entered an agreement to mediate that is evidenced by a record.
(2) "Mediation" means a process in which disputants in a controversy, with the assistance of a mediator, negotiate toward a resolution of the conflict that will be the disputants' decision.
(3) "Mediation communication" means a statement made as part of a mediation. The term may also encompass a communication for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.
(4) "Mediator" means an impartial individual, of any profession or background, who is appointed by a court or government entity or engaged by disputants through an agreement evidenced by a record.
(5) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(6) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(7) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
SECTION 2. CONFIDENTIALITY: PRIVILEGE; WAIVER; EVIDENTIARY AND DISCOVERY EXCLUSION; NONDISCLOSURE; EXCEPTIONS.
(a) A disputant has a privilege to refuse to disclose, and to prevent any other person from disclosing, mediation communications in a civil judicial, administrative, or arbitration proceeding.
(1) This privilege may be waived, but only if expressly waived by all disputants either in a record or during a proceeding before a judicial, administrative, or arbitration tribunal. A disputant who makes a representation about or disclosure of a mediation communication that affects another person in a proceeding may be precluded from asserting the protections of the privilege, but only to the extent necessary to respond to the representation or disclosure.
(b) A mediator has a privilege to [refuse to disclose, and to prevent any other person from disclosing, the mediator's mediation communications and may] refuse to provide evidence of mediation communications in a civil judicial, administrative, or arbitration proceeding.
(1) This privilege may be waived, but only if waived expressly by all disputants and the mediator, either in a record or during a proceeding before a judicial, administrative, or arbitration tribunal. A mediator who makes a representation about or disclosure of a mediation communication that affects another person in a proceeding may be precluded from asserting the protections of the privilege, but only to the extent necessary to respond to the representation or disclosure.
(2) A mediator may not disclose mediation communications unless all of the disputants agree, or the mediator reasonably believes that law, professional reporting requirements, or public policy requires the disclosure. A mediator also may not make a report, assessment, evaluation, recommendation, or finding regarding a mediation, to a judge, agency, or authority that refers the matter to mediation or employs that mediator and that may make rulings on or investigations into the dispute that is the subject of the mediation.
(c) Mediation communications are not subject to discovery or admissible in evidence in a civil, arbitration, or administrative tribunal if they are privileged and are not waived or subject to preclusion under subsection (a) or (b). [bracketed provision -- see Reporter's Working Notes].
[(d) Evidence of a disputant's mediation communications may not be admitted into evidence against that disputant in a criminal or juvenile delinquency proceeding related to a matter being mediated if:
1. A court or prosecutor refers a criminal or juvenile delinquency case to mediation,
2. A public agency refers a dispute involving allegations of juvenile criminal activity to mediation, or
3. An entity charged by law to mediate criminal or juvenile cases accepts a case involving allegations of crime.]
(e) There is no privilege or prohibition under subsections (a), (b), (c), or (d) of this section:
(1) for a record of an agreement between two or more disputants;
(2) for the sessions of a mediation that must be open to the public under the law.
(f) There is no privilege nor prohibition under subsections (a), (b), (c), or (d) of this section if a judicial, administrative, or arbitration tribunal finds, after an in camera hearing, that the disputant seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is an overwhelming need for the evidence that substantially outweighs the importance of the state's policy favoring the protection of confidentiality and the subject matter of the disclosure is limited to:
(1) threats made by a participant to inflict violence or unlawful property damage;
(2) a disputant or mediator who uses or attempts to use the mediation to plan or commit a crime;
(3) a proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law, for mediation communications offered to prove or disprove abuse or neglect, unless that agency referred the case for mediation;
(4) establishing or disproving a claim or complaint of professional misconduct or malpractice filed against a mediator, a disputant or a representative of a disputant based on conduct occurring during a mediation;
(5) A proceeding in which fraud, duress, or incapacity are raised regarding the validity or enforceability of an agreement evidenced by a record and reached by the disputants as the result of a mediation, but only through evidence provided by persons other than the mediator of the dispute at issue.
[(6) An extraordinary situation not within these enumerated exceptions in which the general purposes of the state policy favoring mediation confidentiality is so outweighed by the need for disclosure that the interests of justice will be served only if disclosure is compelled.]
(g) If mediation communications are admitted under subsection (e) or (f), only the portion of the communication necessary for the application of the excepted purpose shall be admitted. The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose.
(h) Information otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in mediation.
Conceptual Additions to Reporter's Working Notes
(December 1999 Draft)
Subsections 2(a) and (b)
These sections do not preclude the use of mediation communications in criminal or juvenile proceedings. States that classify juvenile proceedings as civil in nature should add "non-juvenile" after "civil."
Subsection 2(c)
This provision would not preempt state laws that deem a mediator an incompetent witness and impose attorney's fees if a person causes a mediator to be subpoenaed to testify in violation of the statute. See, e.g., Cal.Ev.Code § 703.5. The Drafting Committees may wish to make this intent more explicit that by including a bracketed provision that could be adopted by states that currently have mediator incompetency provisions. Such a provision could read: [This Act does not preempt the provisions of §______] (e.g., This Act does not preempt the provisions of Cal. Ev. Code §703.5.] Such an approach would advance the interests of permitting states to retain policy choices they already have made in this regard, while retaining general uniformity.
SECTION 3. MEDIATION PROCEDURES
(a) A mediator shall disclose any information related to a conflict of interest the mediator may have with regard to a particular dispute, and, if asked by a disputant or a disputant's representative, a mediator shall disclose the mediator's qualifications to mediate a dispute.
(b) Unless mediators fall within common law protections extending judicial immunity, no immunity may be extended to mediators specifically for their conduct related to mediation. In an action against a mediator arising out of conduct of the mediation session, reasonable attorney's fees and other expenses of litigation may be awarded to a prevailing defendant.
(c) A disputant has the right to bring a designated representative to any mediation session. A waiver of this right before mediation is ineffective.
SECTION 4. ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.
Alternative 1
[(a) A disputant entering into a written mediation agreement may with the consent of all disputants to such agreement, either as part of the agreement or by a separate record, request that a court of general jurisdiction enter a judgment in accord with the agreement set forth in the settlement agreement, provided that:
(1) A petition requesting such judgement is filed within (30) days of such settlement agreement;
(2) Notice is given to or waived by all disputants to the agreement within (30) days of the filing of such petition;
(3) No disputant to the agreement files an objection within (30) days of notice or waiver of notice.
(b) If on motion of any of the disputants to the settlement agreement, the court finds that the provisions of subsection 4 (a) have been met, the court shall enter judgment in the terms set forth in the mediated settlement agreement.
(c) If the court finds that an objection has been filed as provided in subsection 4(a)(a)(3), or the interest of justice require, the court shall deny such petition, without prejudice to any contractual rights or remedies that may otherwise be available.]
Alternative 2
(a) Disputants who have entered into a written settlement agreement following mediation may stipulate in writing for the entry of a judgment without action pursuant to the terms of that settlement agreement.
(b) A judgment based on a settlement agreement following mediation may be entered only if the following requirements are satisfied:
1. The settlement agreement is signed by the disputants themselves, not solely their attorneys.
2. All disputants to the settlement agreement are represented by counsel and counsel for each disputant signs a certificate stating, "I have examined the proposed judgment and have advised my client concerning his or her rights in connection with this matter and the consequences of signing or not signing the agreement of the entry of the judgment. My client, after being so advised, has agreed to the entry of the judgment."
3. The settlement agreement and all the attorneys' certificates are filed with the court.
( c) If the requirements of this section are satisfied, the court may enter judgment pursuant to the terms of the settlement agreement without action. A judgment so entered may be enforced by any means by which other civil judgment may be enforced.]
Reporter's Working Notes
Rationale for this provision
The Draft presents language representing alternative approaches to the enforcement of mediated settlement agreements that has not been considered by the Committee.
Statutory provisions for summary enforcement of mediated agreements are relatively rare. Those statutes that provide for special enforcement of mediated agreements are limited to contexts in which the agreement is reached in a court-annexed, agency-annexed, or arbitration-annexed mediation program. See, e.g., Cal. Civil Pro. Code sec. 1297.401 (West 1998)(international commercial arbitration/conciliation); Ga. Code Ann. § 45-19-39 (c) (1998)(conciliated agreement pending civil rights agency proceeding); Haw. Rev. Stat. § 515-18 (1998) (conciliated agreement pending civil rights agency proceeding); N.C. Gen. Stat. § 1-567.60 (1998) (international commercial arbitration/conciliation); Wash. Rev. Code § 26.09.184 (1998)(domestic court settlement). The Draft provisions, in contrast, also apply to mediation in a private setting, without the possible review or oversight of the tribunal.
Alternative 1 presents an opt-in confirmation model that is similar to the enforcement mechanisms of the Revised Uniform Arbitration Act. It permits disputants to ask a court of appropriate jurisdiction to enter the mediated settlement agreement as an enforceable court judgment. However, recognizing the disparities of power and information that can exist between mediation disputants, it places several conditions upon the ability of the court to act on such a request. First, it requires this decision to be made fairly soon after the settlement agreement, thus ensuring the disputants both time to reflect on their agreement, and to make the decision about whether they would want it to be summarily enforced while the issues are still fresh in their minds and their recollections. Critically, the provision also provides that the disputant seeking summary enforcement provide notice to the other disputant(s) of such an intent, thus prohibiting the possibility of ex parte requests for enforcement. Finally, Alternative 1 only permits the court to act on a summary enforcement request only if there is no disputant files an objection within 30 days. If such an objection is filed, the court may not grant the request for summary enforcement, regardless of the basis for or validity of the objection. This subsection also permits the court to deny enforcement if the interests of judgment require. The denial of a request for summary enforcement does not prejudice any rights or remedies that a disputant may have through the normal mechanisms of contract.
Alternative 2 presents a stipulated judgment model. That is, it permits the disputants to stipulate to the entry of the mediated settlement agreement as a court judgment. In this regard, Alternative 2 differs from Alternative 1 in that it requires affirmative participation by all disputants, while Alternative 1 permits a mediated settlement agreement to be entered upon a request by one disputant, if the other disputant does not respond within 30 days. Like Alternative 1, Alternative 2 places specific conditions upon the authority of the court to enter the stipulated agreement as an enforceable court order. It begins with a requirement of actual attestation by the disputants, not merely by their attorneys if they are represented. This provision is intended to ensure that it is the disputants who are making the decision about whether to waive future contractual defenses to the enforcement of the mediated settlement agreement. Critically, Alternative 2 also ensures that such a decision is an informed one by requiring the attestation of an attorney that he or she has reviewed the agreement and advised the disputant about his or her rights in connection with it, and about the consequences of signing or not signing the stipulation. This provision is intended to guard against the inadvertent waiver of contractual and trial rights by unknowing or unsophisticated disputants. This advantage-taking was a particular criticism of the cognovit notes in other contexts.
Absent such a provision, mediated agreements are usually on the same footing in terms of enforcement as other settlement agreements. If the settlement is reached pending litigation, the courts may provide summary enforcement, particularly if the agreement is incorporated in a consent judgment. If not, a disputant seeking to enforce a mediation agreement would file a contract-based action. See generally Rogers & McEwen § 4:14.
A key justification for this provision is that it would encourage greater use of mediation and, presumably, more settlement. At the same time, an argument might be that disputants would be fearful of using this process because they would forego contract defenses, such as fraud and duress. The provision might encourage those who could settle without a mediator to use one, thereby increasing the expense of settlement. Another advantage would be that the procedure would impinge less on the confidentiality of the mediation process.
A key issue is the need for such a provision. Disputants who seek this advantage can do so currently by agreeing to arbitrate their dispute, and incorporating the mediated agreement into an arbitration award, thereby securing expedited and summary enforcement. This Draft attempts to reduce some possible disadvantages. The process is limited to situations in which the disputants are advised by counsel that they are giving up trial rights. In addition, by using "may," the Draft invites the courts to examine extreme situations of injustice prior to entering judgment. Indeed, such a provision may be necessary to protect the courts from placing their enforcement powers behind something that may not be appropriate for a court to enforce.
The current draft of the UMA has now already passed its first reading before the full Uniform Law Conference (July 30, 1999). The Drafting Committee will meet three more times before submitting the final draft to the full national conference in July of 2000. Most of the concerns raised in the May 19 posting to the dispute-res list, and in the detailed May 8, 1999 letter to the Drafting Committee have still not been addressed. The stakes also have gone up considerably. The Drafting Committee stated in Denver that it is now aiming to establish these laws to also define and govern mediation in the Federal District Courts as well as in all State Courts. The Drafting Committees agreed to revise the draft Act at their October meeting, but no new revised draft had been issued as of 12/3/99.
At the Annual Conference July 30 in Denver, all delegates of the full National Conference of Commissioners on Uniform State Law were requested to direct the Drafting Committee to amend the draft Act (see Request for Sense of the Conference Resolution below). Successive Sense of the House motions on these issues were raised on the floor by concerned delegates. They were opposed by the Drafting Committee and defeated or withdrawn. In one of the more dramatic moments, Bion Gregory, a Past President of the full Conference, moved to strike confidentiality exceptions 5-9 in section II c. He said they were so broad you could drive a truck through them. He said it was clear this was a policy issue, not a drafting question. Gregory stated that he had a lot of direct experience using mediation and that the current UMA draft would seriously hamper mediation if adopted in his state. His Sense of the House motion was formally opposed by the Drafting Committee and argued against by Drafting Committee members. It was withdrawn when it became clear Gregory did not have the votes to pass it.
Anyone who agrees that serious concerns
are raised on this page is asked to say so loudly, clearly and
publicly. Please raise your concerns soon to your ADR organizations,
to SPIDR leadership (SPIDR UMA Committee Co-Chairs Dennis Sharp and
Peter Adler at aaasharp@aol.com), to the UMA Drafting
Committee Chair and Reporters, to
the ABA Dispute Resolution Section (Section Chair Jim Alfini at
jalfini@niu.edu), and to the Uniform
Law Commissioners for your state
(listed below). The Drafting Committee on the Uniform Mediation Act
will be meeting next on December 10-12, 1999 in Monterey, California.
Phone the Conference Administrator, Ellyce Anapolsky, or other
Conference staff, at 703-525-1234, for information on
attending.
6/99 DRAFT- FOR DISCUSSION ONLY
© 1999, National Conference Of Commissioners On Uniform State Laws
Full text of draft and official comments at http://www.law.upenn.edu/library/ulc/ulc.htm
SECTION 1. DEFINITIONS. In this [Act:]
(1) "Disputant" means a person that participates in mediation and:
(A) has an interest in the outcome of the dispute or whose agreement is necessary to resolve the dispute, and
(B) is asked by a court, governmental entity, or mediator to appear for mediation or entered an agreement to mediate that is evidenced by a record.
(2) "Mediation" means a process in which disputants in a controversy, with the assistance of a mediator, negotiate toward a resolution of the conflict that will be the disputants' decision.
(3) "Mediation communication" means a
statement made as part of a mediation unless the disputant would not be reasonable in
expecting that the communication is confidential. The term
may shall also encompass a communication for purposes of
considering, initiating, continuing, or reconvening a mediation or
retaining a mediator.
(4) "Mediator" means an impartial individual appointed by a court or government entity or engaged by disputants through an agreement evidenced by a record.
(5) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(6) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(7) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
SECTION 2. CONFIDENTIALITY: PROTECTION AGAINST COMPELLED DISCLOSURE; WAIVER.
(a) A disputant may refuse to disclose,
and prevent any other person from disclosing, mediation
communications in a civil, juvenile, criminal misdemeanor,
arbitration, or administrative proceeding. Those rights may be
waived, but only if waived by all disputants expressly
or through conduct inconsistent
with the continued recognition of those rights.
(b) A mediator may refuse to disclose,
and prevent any other person from disclosing, the mediator's
mediation communications and may refuse to provide evidence of
mediation communications in a civil, juvenile, criminal misdemeanor,
arbitration, or administrative proceeding. Those rights may be
waived, but only if waived by all disputants and the mediator
expressly or through conduct
inconsistent with continued recognition of those
rights.
(c) There is no protection under subsections (a) and (b):
(1) for a record of an agreement by two or more disputants;
(2) for mediation communications that threaten to cause another bodily injury or unlawful property damage;
(3) for a disputant or mediator who uses or attempts to use the mediation to plan or commit a crime;
(4) in a proceeding initiated by a public agency for the protection of a child or other member of a class of individuals protected by the law, for communications offered to prove abuse or neglect;
(5) if a court determines, after a hearing, that
disclosure is necessary to prevent a manifest injustice of such a
magnitude as to outweigh the importance of protecting the
confidentiality of mediation communications;
[(6) for communications
evidencing professional misconduct in a report required by law to be
made to an entity charged by law to oversee professional misconduct.]
[(7) to the extent found
necessary by a court, arbitrator, or agency if the disputant files a
claim or complaint against a mediator or mediation
program.]
[(8) in a proceeding to establish
the validity, invalidity, enforceability, or unenforceability of an
agreement evidenced by a record and reached by the disputants as the
result of the mediation.]
[(9) to the extent found
necessary by a court or administrative agency hearing officer if a
person who is not a disputant and to whom a disputant owes a duty
files a claim or complaint against the disputant related to the
disputants' conduct in the mediation.]
(d) Information otherwise admissible or subject to discovery does not become inadmissible or protected from disclosure solely by reason of its use in mediation.
SECTION 3. CONFIDENTIALITY: PROHIBITION AGAINST DISCLOSURE BY A MEDIATOR.
Unless disclosure is permitted under Section 2, or unless all participants in the mediation expressly agree otherwise in writing, a mediator may not:
(1) disclose mediation communications to a judge or an agency or authority that may make rulings on or investigations into a dispute;
(2) make any report, assessment, evaluation, recommendation, or finding representing the opinions of the mediator to those persons described in paragraph (1); or
(3) disclose mediation communications to the general public.
SECTION 4. QUALITY OF MEDIATION.
(a) A mediator shall disclose information related to the mediator's qualifications or possible conflicts of interest if requested by a disputant or representative of a disputant.
[(b) Unless immunity from liability is extended to mediators by common law, rules of court, or other law of this state, a contractual term purporting to disclaim a mediator's liability for willful misconduct is void as a matter of public policy.]
(c) A disputant has the right to be represented at any mediation session. A waiver
of representation before mediation is ineffective.
For preliminary discussion only:
[SECTION 5. ENFORCEMENT OF AGREEMENTS TO MEDIATE, MEDIATED AGREEMENTS.
Reporter's Working Notes: This Draft provides bracketed language that would extend provisions currently according enforcement to agreements to arbitrate and arbitration awards so that these provisions also encompass agreements to mediate and mediated agreements...extending the Draft Revised Uniform Arbitration Act provisions to mediation...]
Prepared by Ron Kelly 7/27/99 (510-843-6074)
Dear Commissioner,
Like you, I have donated thousands of unpaid hours to forming good public policy. Probably unlike you, for a decade my time has all been devoted to forming sound mediation law.
I respectfully urge you to sponsor and/or support a Sense of the Conference Resolution directing the Drafting Committee to amend the current Draft Uniform Mediation Act as follows.
1. Section 1 (3), remove the phrase "unless the disputant would not be reasonable in expecting that the communication is confidential." This phrase makes the intended protections unpredictable, and therefore of little use. "Reasonable" people differ all the time on what should be confidential. Change "may encompass" to "shall encompass", to eliminate uncertainty in protecting mediation intake communications.
2. Section 2 (a) and (b), remove the phrase "or through conduct inconsistent with the continued recognition of those rights". This phrase also makes the intended protections unpredictable. The protections could later be deemed to have been waived by completely unknowing acts.
3. Section 2 (c) (5-9), remove all of these paragraphs. They are so broad as to again make the protections unpredictable.
4. Section 3, strengthen this section. Strictly prohibit a mediator from hearing confidential information from all sides, and then later testifying against one of the parties.
5. Section 4 (b) add the phrase "for willful misconduct". Ordinary persons can contractually agree to limit liability for unintended error. There is no public benefit from discriminating against mediators, who are asked to step in between warring parties and try to make peace.
I would welcome a discussion with you on these points and any others (phone: 510-843-6074, email: <ronkelly@ronkelly.com>). If you believe that sound mediation law is important, and want more detailed analysis, available on request and at my website <www.ronkelly.com> is the detailed letter sent to President Lebrun, Committee Chair Getty, and all Commissioners dated May 8, 1999. Thank you for taking the time to read this letter.
Sincerely,
Ron Kelly, Mediator
Drafting Committee Observer
Do we want people to be able to speak candidly in mediation, without fear that their own words may be used against them later in trial? Yes? If you believe this is important, then you will not like several major parts of the 4/99 Draft of the Uniform Mediation Act, and you will want to act soon.
The National Conference of Commissioners on Uniform State Law (with the American Bar Association Dispute Resolution Section) is drafting a Uniform Mediation Act &endash; intending to promote its enactment in all fifty states. The Conference's previous uniform act on ADR (the Uniform Arbitration Act) was enacted in whole or substantial part in all states except four.
The Mediation Act is on a fast track to adoption. All substantial Drafting Committee work has been completed for first reading July 30. at the full Uniform Law Conference. This first reading is the main opportunity for the full Conference to give significant direction to the Drafting Committee.
1. The Act seeks to establish uniform statutory protections for mediation communications from state to state. This is especially important in interstate matters to prevent later loss of confidentiality.
2. It balances confidentiality with protections against settlement coercion and mediator reporting (Sec 3 b). This is crucial to protecting the integrity of mediation as a means of producing voluntary agreements..
1. The 4/99 Draft's numerous broad exceptions will undermine parties' confidence in confidentiality (Sec 2 c). For example, there will be no protection against one side using mediation communications to try to later attack the enforceability of their settlement, including subpoenaing the mediator to testify against the other side (Sec 2 c 8). Another exception will authorize any judge to later decide confidentiality would promote a "manifest injustice", and simply override it (Sec 2 c 5)
2. The Draft frames protection for confidentiality as a privilege, then sets up three different classes of mediation participants (disputants, mediators, and others - Sec 2 a& b). The complexity of multiple holders of a privilege with several different classes of ability to assert protections is made worse by creating implied unknowing waiver. However, the draft fails to gain the legal advantage of actually using the recognized term "privilege" &endash; it doesn't. The Draft further makes protections for intake communications uncertain (Sec 1 d). It would discard California's approach, which requires the express written consent of all participants before reversing confidentiality protections, provides clear coverage for intake communications, and prevents subpoena of a mediator's testimony (Cal Evid C 1115, 1119, 1122, & 703.5).
3. There is no exclusion preventing a judge who is hearing a case from personally conducting a "mediation" of the case, subverting due process protections against ex parte communications.
4. The Draft will void the parties' agreement to hold the mediator harmless (a common part of commercial agreements to mediate) unless a state has already provided mediator immunity (Sec 4 c).
The sooner the better. Please take the opportunity now to contact Uniform Law Commissioners and ABA members. Urge them briefly to direct the Drafting Committee to:
1. Eliminate all possible exceptions which undermine confidence in confidentiality (delete 2 c 5 thru 9).
2. Provide that mediators cannot testify later against mediation participants (as under Cal Ev C 703.5)
3. Provide that all mediation communications, including intake, are simply off-the-record in later non-criminal proceedings, unless all participants expressly agree otherwise in writing.
4. Provide that judges will not also be mediators in the same cases they are hearing.
5 Stop trying to invite lawsuits against mediators (as earlier drafts did, and later ones still may).
Summary by Ron Kelly, Committee Observer, 510-843-6074, ronkelly@igc.org
Full text with NCCUSL Reporter's official explanations at <www.nccusl.org>.
May 8, 1999
Mr. Gene N. Lebrun, President
Mr. John L. McClaugherty, President-Elect
Mr. Stanley M. Fisher, Division Chair
Prof. Fred H, Miller, Executive Director
All Commissioners
National Conference of Commissioners on Uniform State Laws
211 E. Ontario Street. Suite 1300
Chicago, Illinois 60611
Hon. Michael B. Getty, Chair
Prof. Nancy Rogers, Committee Reporter
NCCUSL Drafting Committee
Hon. Chief Justice Thomas J. Moyer, Co-Chair
Ms. Roberta Cooper Ramos, Co-Chair
Prof. Richard Reuben, Committee Reporter
ABA Dispute Resolution Section Drafting Committee
Via Email and First Class Mail
Re: Serious Concerns About the 4/99 Draft of the Uniform Mediation Act
Dear President Lebrun, President-Elect McClaugherty, Prof. Miller, Division Chair Fisher, Co-Chairs Getty, Ramos, and Moyer, Members of the NCCUSL and ABA Uniform Mediation Act Drafting Committees, Committee Reporters, and NCCUSL Commissioners,
Thank you for the opportunity to comment on the April 1999 Draft of the proposed Uniform Mediation Act. Thank you also for the responsiveness you have shown to previous concerns I have raised about the two previous drafts. The current draft is vastly improved over these. However, I urge the full Conference to give strong direction to the Drafting Committee to makes the changes proposed below.
I know you will understand that my comments are those of someone who, like you, donates his time without compensation to try to form sound public policy on mediation. My comments are also those of someone who brings a decade of experience in the drafting and sponsoring of mediation statutes in California. As you may know, I've spent the past ten years convening and attending statewide conferences, public hearings, and private hardball negotiating meetings to help craft California's laws defining and governing mediation. These meetings involved legislators and legislative commissions, trial lawyers, mediation providers and consumers, court staff, consumer groups, and representatives of all branches of government.
There are many improvements and positive sections of this latest draft. It is much shorter and easier to understand. The language in Section 4 (c) protecting the rights of disputants to bring lawyers and other support personnel to a mediation, and the protections against mediator coercion in Section 3 are vitally important. I am very concerned however, that the current draft, if enacted, would still strip away strong current protections for the integrity of mediation which we have spent fifteen years carefully crafting and enacting into California law. My comments are based primarily on why I believe the current draft would face strong and well-organized opposition if proposed in California. They probably apply equally to many other states. If enacted in California, the current draft would create so many subjective exceptions to the general rule of confidentiality that participants could no longer feel confident to speak openly with their mediator, and it would greatly increase the number of mediators who will be subpoenaed and sued.
Following is a line-by-line identification of the troubling sections, the specific concerns, the reasoning, and possibilities for alternative approaches or language (and cites to code sections if drawn from already-enacted law here).
4/99 Draft Section 1 (d), Beginning Page 1, line 12,
SECTION 1. DEFINITIONS. In this Act:...
(d) "Mediation communication" means a statement made as part of a mediation unless the disputant would not be reasonable in expecting that the mediation is confidential. It may also encompass a communication for purposes of considering, initiating, continuing, or reconvening a mediation or retaining the mediator.
Concerns:
1) The phrase "unless the disputant would not be reasonable in expecting that the mediation is confidential" creates a later subjective court fight over whether its reasonable to expect confidentiality. The Consumer Attorneys of California has stated that "There is universal agreement that settlement negotiations, and discussions during mediation, should be held confidential for all time." (August 7, 1998 letter to the California Law Revision Commission regarding its Study K-410). The reasonability clause makes confidentiality uncertain and undermines the benefit. This phrase was inserted in this draft to try to accommodate concerns about mediation of large public issues conducted in public forums. This demonstrates a key problem of the whole privilege approach, which requires secrecy to keep inadmissibility, as discussed below.
Proposed Change:
I urge you to remove this phrase and address public policy mediation in a separate section.
2) The phrase "It may also encompass a communication..." also creates a later subjective fight over whether intake communications and efforts to initiate mediation are confidential. Can a disputant confidently talk openly with a mediator for the purpose of trying to get a mediation going? The Reporter's Notes (page 6, line 13) state that this sentence "makes clear that early communications about a mediation typically should be 'mediation communications'. This is not clear at all. The second sentence of the Draft's 1(d) tracks Calif. Evidence Code Section 1115 c, except that California's law doesn't say "may". Section 1115 c allows disputants to be confident that they can talk openly with a mediator when seeking to initiate a mediation. California determined that clear protection for intake communications was very important, and I am not aware of any alleged abuse of our section 1115 c.
Proposed Change:
I urge you to change "It may also encompass" to "It also encompasses".
4/99 Draft Section 2 - Page 7, line 16:
SECTION 2. CONFIDENTIALITY: PROTECTION AGAINST COMPELLED DISCLOSURE; WAIVER.
(a) A disputant may refuse to disclose, and prevent any other persons from disclosing, mediation communications in a civil, juvenile, criminal misdemeanor, arbitration, or administrative proceeding. These protections may be waived, but only if waived by all disputants explicitly or through conduct inconsistent with the continued recognition of the protection.
(b) A mediator may refuse to disclose, and prevent any other person from disclosing, that mediator's mediation communications and may refuse to provide evidence of mediation communications in a civil, juvenile, criminal misdemeanor, arbitration, or administrative proceeding. These protections may be waived, but only if waived by all disputants and the mediator explicitly or through conduct inconsistent with continued recognition of the protection.
Concerns:
1) This language sets the protection up as a privilege framework, and it is even called a privilege in the Reporter's Notes (page 5 line 33). But it does not gain the benefit of actually calling it a privilege. Many other laws recognize privileged communications generally and exempt them from disclosure. The Draft's approach would set up three different classes of mediation participants - disputants, mediators, and others - each with a different ability to insist on confidentiality.
Proposed Change:
I urge you to adopt California's approach. We provide that all communications are inadmissible, and protected from discovery and compelled disclosure, unless all participants in the mediation expressly agree otherwise in writing (Calif. Evidence Code Sections 1119 and 1121).
2) The phrase "These protections may be waived...through conduct inconsistent with continued recognition of the protection" again makes the confidentiality unpredictable. Because of the privilege structure of this draft, a judge or arbitrator may later view it like the attorney-client privilege which they are used to. They may decide that complete secrecy was required to keep inadmissibility. An unsophisticated disputant who talks over proposed resolutions with their CPA, or neighbor, or co-worker may be later deemed to have waived confidentiality without ever knowing it.
Proposed Change:
I again urge you to at least delete the phrase "or through conduct inconsistent with the continued recognition of the protection" in paragraphs (a) and (b).
4/99 Draft Section 2 (c) (5) through (9) - Beginning Page 7, line 29:
(c) There is no protection under (a) and (b):...
(5) When the court determines, after a hearing, that disclosure is necessary to prevent a manifest injustice of such a magnitude as to outweigh the importance of protecting the confidentiality of mediation communications.
[(6) For communications evidencing professional misconduct when a report is required by law to be made to an entity charged by law to oversee professional misconduct.]
[(7)To the degree ruled necessary by a court, arbitrator, or agency if the disputant files a claim or complaint against a mediator or mediation program.]
[(8)To establish the validity or invalidity, or the enforceability or nonenforceability of an agreement reached by the disputants as the result of the mediation session if the agreement is evidenced by a record.]
[(9) To the degree ruled necessary by a court or administrative agency hearing officer if a person who is not a disputant and to whom a disputant owes a legal duty files a claim or complaint against the disputant related to that disputants' actions or inactions in the mediation.]
Concerns:
Providing a long list of broad exceptions, many of which depend on later subjective judgments, would again undermine participants' confidence in predictable confidentiality.
Paragraph (5) would mean no mediation participant, or their counsel, could predict whether a judge might later decide to strip away protections to "prevent manifest injustice". Protecting people from "manifest injustice" has undisputed appeal, but imagine trying to explain what this really means to a potential mediation participant. "You can be sure that everything is confidential unless a judge later decides it shouldn't be."
Paragraph (6) would mean that many licensed professionals would be unable to safely participate in mediation. Anything they said might be used against them in later license board hearings if anyone else in the mediation had a similar license and was required to report alleged misconduct (which is common).
Paragraph (7) would mean that if a participant wanted to break open the confidentiality of the mediation, one of the surest ways to do it would be to file a claim against the mediator. A fair hearing would often require everyone to describe exactly what they said or did to argue complex patterns of whether or not the mediator was justified in her/his actions. This provides an open invitation to break confidentiality by suing mediators.
Paragraph (8) would mean that there was really no confidentiality at all. Anyone could decide to later contest the enforceability of their signed settlement if they reach one, and confidentiality suddenly dissolves.
Proposed Change:
I strongly urge that you delete exceptions 5-9.
4/99 Draft Section 3 - Beginning Page 15, line 2:
SECTION 3. CONFIDENTIALITY: PROHIBITION AGAINST VOLUNTARY DISCLOSURES BY A MEDIATOR.
Except where disclosure is permitted under Section 2, a mediator shall not:
(a) Disclose mediation communication to:
(1) a judge; or
(2) an agency or authority that may make rulings on or
investigations into a dispute.
(b) Make any report, assessment, evaluation, recommendation,
or finding representing the opinions of the mediator to those persons described in (a).
Concerns:
1) This section is a crucial part of enabling participants to speak truthfully without fear that their own words may be used against them later. Overzealous mediators have coerced settlements by threatening to report adversely to a judge. Unfortunately, because of the numerous broad exceptions in Section 2, this protection is undercut by the initial clause "Except where disclosure is permitted under Section 2". At least in California, our legislature has unanimously declared that mediators should not be providing the kind of reports and testimony described in these exceptions.
Proposed Change:
I again urge these exceptions be cut to only 1-4.
2) This Draft's Section 3 (b) is patterned on Calif. Evidence Code Section 1121. In California, many were shocked to find that mediation was used to subvert one of the most basic due process rights - namely the right to hear what is said against you to the judge hearing your case. Courts were requiring that if a case was not settled in mediation, the mediator use what was said in mediation to make secret recommendations to the judge hearing the case that neither party was allowed to see. (See Mediation Confidentiality, 26 California Law Revision Commission Reports 407 (1996)). To prevent this, California enacted Evidence Code 1152.6, and later expanded this to the current section 1121,
1121 states "Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing..."
The statement of legislative intent of this California section by the Law Revision Commission states that it "applies to all types of adjudications, including arbitrations and administrative adjudications,...the focus is on preventing coercion...a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decisionmaker on the merits of the dispute or reasons why mediation failed to resolve it...A mediator"s report...may disclose mediation communications only if...all persons who participate...agree to the disclosure..."
Proposed Change:
I urge you to strengthen this section as California did by adding language such as "No court, adjudicative body, or investigator may consider any such report by the mediator. This prohibition shall not apply to a report that is mandated by court rule or other law provided that the report states only whether a participant appeared at a mediation and whether an agreement was reached."
3) If all participants in the mediation expressly agree in writing, they should be able to opt to permit mediator reporting, as is now done by agreement in some California programs.
Proposed Change:
I urge you to add the phrase "unless all of the mediation participants expressly agree in writing".
4) California law further guarantees that no mediator can testify for or against any party later in a civil proceeding if the matter does not settle. This is considered a critical protection guaranteeing the neutrality of the mediator and the process. Counsel for California's own state-run State Mediation and Conciliation Service argued strongly for this. As he pointed out, the National Labor Relations Board and the Ninth Circuit Court of Appeals also concluded that "the complete exclusion of mediator testimony is necessary" for effective mediation. (NLRB v. Macaluso, 618 F.Ed 51 (9th Cir. 1980)
Sec. 703.5 states in relevant part that "...no mediator shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to [one]...that could...constitute a crime...or give rise to disqualification..."
Proposed Change:
I strongly urge you to add a section which tracks California Evidence Code Section 703.5.
4/99 Draft Section - Section 4 (b) Beginning Page 17, Line 5:
SECTION 4. QUALITY OF MEDIATION...
[(b) If immunity from liability is not extended to mediators by common law judicial immunity doctrine, rules of court or other law of this state, any contractual provision purporting to disclaim the mediator's liability shall be void as a matter of public policy.]
Concerns:
1) Members of the faculty advisory group have stated that they want to try to prevent the development of mediator immunity. The Reporter's Notes to the March 99 draft at page 26 line 32, and page 30, line 15 argue that making sure mediators are exposed to lawsuits seems the only reasonable public policy. Many states however, have decided to provide civil immunity for all but willful misconduct. Others are still grappling with this question. The 3/99 Draft had language which the NCCUSL Division Chair objected to. He labeled it an invitation to sue mediators. The 4/99 Draft wording is a compromise suggested by NCCUSL's President-Elect.
Disputants in many lawsuits are very angry and aiming to seriously damage each other economically. Many parties in commercial cases agree to indemnify mediators and hold them harmless as a condition of the mediator getting in between the warring parties. This follows common business practice in knowingly entering risky situations, follows common practice by municipalities granting encroachment permits, and many similar situations of known risk. This section of the 4/99 Draft is still designed to try to void parties' contractual agreements.
Proposed Change:
I urge you to at least add the phrase "for willful misconduct" after the word "liability".
2) Suggested Alternative Approach to Promoting the Suing of Mediators:
In California we have adopted a clear alternative to this approach. It involves two aspects. First, strong statutory protections against any mediation participant, mediator, or judge using mediation communications against any participant. Second, any such use in a later trial, arbitration or hearing which produces substantial prejudice is grounds to overturn the decision or declare a mistrial. California's choice was to provide testimonial immunity to protect mediators from subpoena. It was to provide a new hearing as a remedy for anyone prejudiced by illegal use of communications made in mediation.
Proposed Change:
I urge you to omit Section 4 (b), and to add sanctions such as the following for misuse of mediation communications. I urge you to track California Evidence Code Section 1128 which states "Any reference to a mediation during any subsequent trial is an irregularity in the proceedings [under]...Sec. 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding...and granting a new or further hearing...if the reference materially affected [a party"s] substantial rights..."
Thank you again for the opportunity to comment, and thank you for your continuing dedicated efforts.
Respectfully submitted,
Ron Kelly, Mediator
Observer to the Drafting Committee
2731 Webster Street
Berkeley, California 94705
(phone: 510-843-6074)
(fax: 510-843-4439)
(email: ronkelly@igc.org )
Text Only w/o Reporter's Notes
FOR DISCUSSION ONLY
© 1999, National Conference Of Commissioners On Uniform State Laws
Full text of draft and official comments at <http://www.law.upenn.edu/library/ulc/ulc.htm>
SECTION 1. DEFINITIONS. In this Act:
(a) "Mediation" means a process in which disputants negotiate a dispute with the assistance of a mediator toward a resolution that is to be the disputants' decision.
(b) "Mediator" means an impartial person or persons appointed by a court or government entity, or engaged by disputants through an agreement evidenced by a record.
(c) "Disputant" means a person who attends a mediation and:
(1) has an interest in the outcome of the dispute or whose agreement is necessary to resolve the dispute, and
(2) was asked by a court, governmental entity, or mediator to appear for mediation, or entered an agreement to mediate and that agreement was evidenced by a record.
(d) "Mediation communication" means a statement made as part of a mediation unless the disputant would not be reasonable in expecting that the mediation is confidential. It may also encompass a communication for purposes of considering, initiating, continuing, or reconvening a mediation or retaining the mediator.
SECTION 2. CONFIDENTIALITY: PROTECTION AGAINST COMPELLED DISCLOSURE; WAIVER.
(a) A disputant may refuse to disclose, and prevent any other persons from disclosing, mediation communications in a civil, juvenile, criminal misdemeanor, arbitration, or administrative proceeding. These protections may be waived, but only if waived by all disputants explicitly or through conduct inconsistent with the continued recognition of the protection.
(b) A mediator may refuse to disclose, and prevent any other person from disclosing, that mediator's mediation communications and may refuse to provide evidence of mediation communications in a civil, juvenile, criminal misdemeanor, arbitration, or administrative proceeding. These protections may be waived, but only if waived by all disputants and the mediator explicitly or through conduct inconsistent with continued recognition of the protection.
(c) There is no protection under (a) and (b):
(1) For a record of an agreement by two or more disputants;
(2) For mediation communications that threaten to cause another bodily injury or unlawful property damage;
(3) If any disputant or the mediator uses or attempts to use the mediation to commit or plan to commit a crime;
(4) In proceedings initiated by a public agency for the protection of a child or other populations protected by the law, for communications offered to evidence abuse or neglect;
(5) When the court determines, after a hearing, that disclosure is necessary to prevent a manifest injustice of such a magnitude as to outweigh the importance of protecting the confidentiality of mediation communications.
[(6) For communications evidencing professional misconduct when a report is required by law to be made to an entity charged by law to oversee professional misconduct.]
[(7)To the degree ruled necessary by a court, arbitrator, or agency if the disputant files a claim or complaint against a mediator or mediation program.]
[(8)To establish the validity or invalidity, or the enforceability or nonenforceability of an agreement reached by the disputants as the result of the mediation session if the agreement is evidenced by a record.]
[(9) To the degree ruled necessary by a court or administrative agency hearing officer if a person who is not a disputant and to whom a disputant owes a legal duty files a claim or complaint against the disputant related to that disputants' actions or inactions in the mediation.]
If information would otherwise be admissible or subject to discovery outside its use in a mediation, it does not become inadmissible or protected from disclosure solely by reason of its use in mediation.
SECTION 3. CONFIDENTIALITY: PROHIBITION AGAINST VOLUNTARY DISCLOSURES BY A MEDIATOR.
Except where disclosure is permitted under Section 2, a mediator shall not:
(a) Disclose mediation communication to:
(1) a judge; or
(2) an agency or authority that may make rulings on or
investigations into a dispute.
(b) Make any report, assessment, evaluation, recommendation,
or finding representing the opinions of the mediator to those persons described in (a).
SECTION 4. QUALITY OF MEDIATION.
(a) A mediator shall disclose information related to his or her qualifications or possible conflicts of interest if requested by a mediation disputant or representative of a disputant.
[(b) If immunity from liability is not extended to mediators by common law judicial immunity doctrine, rules of court or other law of this state, any contractual provision purporting to disclaim the mediator's liability shall be void as a matter of public policy.]
(c) A disputant has the right to be represented at any mediation session. A pre-dispute waiver of representation prior to mediation is ineffective.
For preliminary discussion only:
[SECTION 5. ENFORCEMENT OF AGREEMENTS TO MEDIATE, MEDIATED AGREEMENTS.
[Reporter's Note: This Section calls for the incorporation of mediation into the Revised Uniform Arbitration Act enforcement provisions. For ease of reading, please see Reporter's Working Notes for a full-text version of how that addition would appear in the RUAA...
Provides for expedited enforcement of mediation agreements, pre-dispute mediation clauses in contracts, and the mediated settlement agreements reached through mediation.]
Full text of 4/99 Draft with Reporter's Notes at
<http://www.law.upenn.edu/library/ulc/ulc.htm>
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Mr. Norman W. Lawson , Jr.Legislative Research CommissioRoom 408, State Capitol Bldg. Frankfort KY 40601 502/564-8100 502/223-5094
Prof.Norvie L. Lay University of Louisville School of Law Louisville KY 40292 502/852-6374 502/852-0862
Mr. John M. Spangler Legislative Research CommissioRoom 409, State Capitol Frankfort KY 40601 502/564-8100 502/223-5094 jmsinky@aol.com
Mr. W. StephenWilborn Suite 403 305 Ann St. Frankfort KY 40601 502/875-3742 502/875-1171 wswilborn@aol.com
LA
Mr. William E. Crawford Louisiana State Law Institute Room 382, LSU Law Ctr. Baton Rouge LA 70803 225/342-6360 225/342-6937
Prof.Henry Deeb Gabriel , Jr.Loyola University School of Law 526 Pine St. New Orleans LA 70118 504/861-5667 504/861-5894 henry.gabriel@mail.sstar.com
Mr. Jerry J. Guillot Senate Research Services P.O. Box 44343 Baton Rouge LA 70804 225/342-0619 225/342-0617
Prof.William D. Hawkland 3651 S. Lakeshore Dr. Baton Rouge LA 70808 504/346-0628 504/346-8841 wdh3770@aol.com
Mr. Robert G. Pugh Suite 2100 333 Texas St. Shreveport LA 71101 318/227-2270 318/227-2273
MA
Mr. Stephen Y. Chow One Beacon St. 30th Floor Boston MA 02108 617/854-4000 617/854-4040 syc@world.std.com
Ms. Elaine M. Farrell Office of House Counsel Room 139, State House Boston MA 02133 617/722-2360 617/722-2644
Hon. William C. Hillman U.S. Bankruptcy Court Room 1101 10 Causeway St. Boston MA 02222 617/565-6097 617/565-8760 judge_william_hillman@mab.uscourts.gov
Prof.Randall L. Kennedy Harvard University Law School Cambridge MA 02138 617/495-0907 617/496-5515
Mr. Edward L. Schwartz 17 Ledgewood Rd. Weston MA 02193 617/235-0806
Mr. Edwin E. Smith Bingham, Dana, LLP 15th Floor 150 Federal St. Boston MA 02110 617/951-8615 617/951-8736 smithee@bingham.com
Mr. David E. Sullivan State House, Room 200 Boston MA 02133-1053 617/722-1470 617/722-1070
MD
Mr. K. King Burnett P.O. Box 910 Salisbury MD 21803-0910 410/742-3176 410/742-0438
Mr. M. MichaelCramer 216 N. Adams St. Rockville MD 20850 301/424-0677 301/340-6947
Mr. M. King Hill , Jr.Suite 2329 8810 Walther Blvd. Baltimore MD 21234 410/661-5211
Mr. Frank F. Jestrab The Carleton, #309 4550 N. Park Ave. Chevy Chase MD 20815 301/656-5110 fjestrab@erols.com
Mr. William G. Somerville Office of Revisor of Statutes 90 State Cir. Annapolis MD 21401 410/841-3870 410/841-3940
ME
Mr. Bruce A. Coggeshall One Monument Sq. Portland ME 04101 207/791-1234 207/791-1350 Bcoggeshall@PierceAtwood.com
Ms. Margaret E. Matheson Office of Revisor of Statutes State House, Station 7 Augusta ME 04333 207/287-1650 207/287-6468
Mr. Robert C. Robinson P.O. Box 568 12 Portland Pier Portland ME 04112 207/772-6565 207/773-5001 rrobinson@rkmlegal.com
Mr. Lewis V. Vafiades 356 Main Road North Hampden ME 04401 207/947-6202
MI
Rep. Laura Baird P.O. Box 30014 Roosevelt Building, Room 592 Lansing MI 48909-7514 517/373-1786 517/373-7297 lbaird@house.state.mi.us
Sen. Willis Bullard , Jr.P.O. Box 30036 Farnum Building, Room 305 Lansing MI 48909-7536 517/373-1758 517/373-0938
Sen. ChristopheD. Dingell P.O. Box 30036 Room 910, Farnum Bldg. Lansing MI 48909 517/373-7800 517/373-9310
Mr. Tom Downs 1200 E. Prescott Dr. East LansingMI 48823 517/351-5752
Mr. Gary B. Gulliver Legislative Service Bureau P.O. Box 30036 Lansing MI 48909 517/373-5613 517/373-0171 ggulliver@lsb.state.mi.us
Prof.William J. Pierce 1505 Roxbury Rd. Ann Arbor MI 48104 734/662-6605 734/973-9208
Rep. Andrew Richner P.O. Box 30014 George Romney Bldg., Room 717 Lansing MI 48909-7514 517/373-0154 517/373-5945 arichner@house.state.mi.us
Mr. Robert B. Webster 3rd Floor 255 S. Old Woodward Ave. Birmingham MI 48009 248/642-9692 248/642-2174 rwebster@clarkhill.com
Prof.James J. White University of Michigan Law SchHutchins Hall, Room 300 625 South State St. Ann Arbor MI 48109-1215 734/764-9325 734/764-8309 jjwhite@umich.edu
MN
Hon. Jack Davies Court of Appeals Judicial Bldg. 25 Constitution Ave.St. Paul MN 55155 651/297-7676 651/297-8779
Dean Harry J. Haynswort, IV William Mitchell College of La875 Summit Ave. St. Paul MN 55105 651/290-6310 651/290-6426 hhaynsworth@wmitchell.edu
Hon. Harriet Lansing Court of Appeals Judicial Bldg. 25 Constitution Ave.St. Paul MN 55155 651/297-1010 651/297-8779 harriet.lansing@courts.state.mn.us
Mr. Michael P. Sullivan P.O. Box 39286 7505 Metro Blvd. Minneapolis MN 55439 612/830-0308 612/830-0301
Mr. Robert J. Tennessen 3400 City Center 33 South 6th St. Minneapolis MN 55402-3796 612/343-2909 612/333-0066 Robert.Tennessen@gpmlaw.com
Ms. Michele L. Timmons Office of the Revisor of Statu700 State Office Bldg. 100 Constitution AveSt. Paul MN 55155 651/296-2778 651/296-0569 michele.timmons@revisor.leg.state.mn.us
Mr. Harry M. Walsh 456 Summit Ave. #206 St. Paul MN 55102 651/224-0512 harry.walsh@gte.net
MO
Mr. John Fox Arnold 714 Locust St. St. Louis MO 63101 314/621-2939 314/621-6844
Hon. Floyd R. Gibson U.S. Court of Appeals 837 U.S. Courthouse 811 Grand Ave. Kansas City MO 64106 816/842-9450 816/426-2936
Mr. Lewis C. Green 705 Olive St. Suite 614 St. Louis MO 63101 314/231-4181 314/231-4184
Prof.Timothy J. Heinsz University of Missouri-ColumbiSchool of Law 203 Hulston Hall Columbia MO 65211 573/882-3246 573/882-4984 heinszt@missouri.edu
Prof.William H. Henning University of Missouri-ColumbiSchool of Law 313 Hulston Hall Columbia MO 65211 573/882-6753 573/882-4984 henning@missouri.edu
Mr. Ralph C. Kidd Committee on Legislative ReseaRoom 117A, State Capitol Jefferson CiMO 65101 314/751-4223 314/751-1476
Sen. Harry Wiggins Missouri Senate Room 423, State Capitol Jefferson CiMO 65101 573/751-2788 573/751-2745
MS
Ms. Teresa Ann Beck House Legislative Services OffP.O. Box 1018 Jackson MS 39215 601/359-3310 601/359-2928
Prof.Robert N. Davis University of Mississippi School of Law Law Center Rm 559 University MS 38677 601/232-7361 601/232-7731 Rdavis@olemiss.edu
Mr. David CalvertDunbar P.O. Box 2990 Jackson MS 39207 601/948-0048 601/948-0050 daviddun@teclink.net
Mr. William Hooper , Jr.Law Research Institute The University of MissisRoom 518, Law Ctr. University MS 38677 601/232-7775 601/232-5267 hooper@olemiss.edu
Rep. Michael P. Mills P.O. Box 117 Jackson MS 39205 601/359-2102 601/359-2443
Mr. William A. Neely , Jr.Senate Finance Committee P.O. Box 1018 Jackson MS 39215 601/359-3217 601/359-3935
MT
Mr. Alex Blewett P.O. Box 2269 Great Falls MT 59403 406/727-5000 406/727-5419
Dean E. Edwin Eck , II University of Montana School of Law Missoula MT 59812 406/243-6534 406/243-2576 eck@selwiz.umt.edu
Hon. Joseph P. Mazurek Office of Attorney General P.O. Box 201401 215 N. Sanders Helena MT 59620 406/444-2026 406/444-3549 jmazurek@counsel.com
Hon. James C. Nelson Montana Supreme Court 215 N. Sanders St. Room 425 Helena MT 59601 406/444-4721 406/444-3274 Jcnelson@state.mt.us
Mr. Gregory J. Petesch Legislative Council Room 117, State Capitol Helena MT 59620 406/444-3064 406/444-3036
Mr. Robert E. Sullivan 112 Hillcrest Loop Missoula MT 59803 406/543-7881
Mr. James E. Vidal P.O. Box 728 22 Second Ave, W. Kalispell MT 59901 406/755-5700 406/755-5565
NC
Prof.Rhoda B. Billings Wake Forest University School of Law P.O. Box 7206 Winston-SaleNC 27109 336/758-5717 336/758-4496 rbillings@law.wfu.edu
Hon. Sidney S. Eagles , Jr.Court of Appeals One West Morgan St. P.O. Box 888 Raleigh NC 27602 919/733-4230 919/733-8003 egj@coa.nc.state.us
Mr. Robinson O. Everett P.O. Box 586 301 W. Main St. Durham NC 27702 919/682-5691 919/682-5469 everett@duke.law.edu
Mr. Carlton E. Fellers P.O. Box 1730 Raleigh NC 27602 919/833-1931 919/833-8009
Mr. Floyd M. Lewis Office of the Attorney GeneralP.O. Box 629 Raleigh NC 27602 919/716-6800 919/716-6755 flewis@mail.jus.state.nc.us
Ms. Susan Kelly Nichols P.O. Box 629 Raleigh NC 27602-0629 919/716-6890 919/716-6755 snichols@mail.jus.state.nc.us
Prof.Elmer R. Oettinger 58 Oakwood Dr. Chapel Hill NC 27514 919/942-1048
Hon. Russell G. Walker , Jr.Superior Court 19-B Judicial District 145 Worth St. Asheboro NC 27203 336/318-6888 336/633-7677 walkers@asheboro.com
Hon. James A. Wynn , Jr.Court of Appeals One West Morgan St. P.O. Box 888 Raleigh NC 27602 919/733-6185 919/733-8003 wynnsct98@yahoo.com
ND
Mr. Jay E. Buringrud Legislative Council State Capitol 600 E. Boulevard AveBismarck ND 58505 701/328-2916 701/328-3615 jburingr@state.nd.us
Prof.Patricia BrumfieFry University of North Dakota School of Law P.O. Box 9003 Grand Forks ND 58201 701/777-2223 701/777-2217 pat.fry@thor.law.und.nodak.edu
Hon. Gail H. Hagerty Burleigh County Court House P.O. Box 1013 514 E. Thayer Ave. Bismarck ND 58502 701/222-6682 701/222-6689 HagertyG@scjd.court.state.nd.us
Mr. David J. Hogue P.O. Box 1000 2nd Floor 20 S.W. 1st St. Minot ND 58702 701/852-0381 701/857-1361 dhouge@minot.ndak.net
Rep. William E. Kretschmar P.O. Box 36 117 First Ave., NW Ashley ND 58413 701/288-3632 701/228-9540 notes.wkretsch@ranch.state.nd.us
Sen. Wayne K. Stenehjem P.O. Box 6352 Grand Forks ND 58206-6352 701/775-6281 701/775-4679 notes.wstenehj@ranch.state.nd.us
Mr. Michael B. Unhjem 4510 13th Ave., S.W. Fargo ND 58121 701/282-1327 701/282-1866 mike.unhjem@bcbsnd.com
NE
Hon. C. Arlen Beam U.S. Court of Appeals 435 Federal Bldg. Lincoln NE 68508 402/437-5420 402/437-5435 abeam@ce8.uscourts.gov
Mr. Norman Krivosha 5900 O St. Lincoln NE 68510 402/467-7176 402/467-7956
Ms. Joanne M. Pepperl Office of Revisor of Statutes Room 358, State Capitol Lincoln NE 68509 402/471-2078 402/471-4025 joanne_pepperl@unicam3.lcs.state.ne.us
Dean Harvey S. Perlman University of Nebraska College of Law P.O. Box 830902 Lincoln NE 68583 402/472-2161 402/472-5185 hperlman@unlinfo.unl.edu
Mr. Larry L. Ruth Suite 202 1233 Lincoln Mall Lincoln NE 68508 402/434-3399 402/434-3390 ruth@nol.org
NH
Mr. W. MichaelDunn P.O. Box 3701 1000 Elm St. Manchester NH 03105 603/627-8198 603/627-8121
Mr. Jeffrey R. Howard Office of Attorney General 25 Capitol St. Concord NH 03301 603/271-3655 603/271-2110
Mr. Michael D. Ruedig P.O. Box 1415 214 N. Main St. Concord NH 03302 603/228-1181 603/226-3477
NJ
Mr. Joseph M. Donegan One Pluckmin Way Bedminster NJ 07921 908/306-6371 908/658-4659 jdonegan@prsmo.com
Mr. Barry H. Evenchick Hellring, Lindeman 8th Floor One Gateway Center Newark NJ 07102 973/621-9020 973/621-7406
Ms. Wanda WilliamFinnie 121 Plumstead Drive Freehold NJ 07728 732/308-4333 732/303-7300
Mr. Howard T. Rosen 99 Sagamore Rd. Millburn NJ 07041 973/763-5313 973/763-5312
NM
Mr. John P. Burton P.O. Box 1357 Suite 101 123 E. Marcy St. Santa Fe NM 87501 505/984-0100 505/989-9542 jpburton@rodey.com
Prof.Robert J. Desiderio University of New Mexico School of Law 1117 Stanford Dr., NAlbuquerque NM 87131 505/277-4700 505/277-1597 desiderior@law.unm.edu
Rep. Thomas P. Foy , Sr.P.O. Box 2615 210 W. Broadway Silver City NM 88062 505/538-2967 505/388-4747
Mr. Philip P. Larragoite Suite 300 707 Broadway Blvd., N.E. Albuquerque NM 87103 505/247-0411 505/842-8890 unmlobby@umn.edu
Sen. Cisco McSorley 500 Copper, NW Suite 102 Albuquerque NM 87102 505/247-1928 505/247-1928 cisco@swcp.com
Ms. Paula Tackett Legislative Council Service Room 311, State Capitol Santa Fe NM 87501 505/986-4600 505/986-4610 ptackett@nm.state.us
NV
Sen. Ernest E. Adler 412 N. Division St. Carson City NV 89703 702/883-5149 702/882-6114
Mr. Robert R. Barengo The Gray Mansion 457 Court St. Reno NV 89501 702/329-6275 702/329-5563
Rep. Barbara E. Buckley Suite 101 701 E. Bridger Ave. Las Vegas NV 89101 702/386-1070 702/366-0569
Sen. Terry J. Care 4371 Woodcrest Rd. Las Vegas NV 89121-4646
Mr. Frank W. Daykin 4745 Giles Way Carson City NV 89704 702/849-1296 702/849-1296
Ms. Brenda J. Erdoes Legislative Counsel Bureau 401 S. Carson St. Carson City NV 89710 702/687-6833 702/687-6761
Rep. David E. Humke P.O. Box 70656 Reno NV 89570 702/322-5955 702/324-6561
Sen. Mark A. James 3800 Howard Hughes Pkwy. Suite 1600 Las Vegas NV 89109-5910
Mr. Scott Scherer 101 N. Carson St. Carson City NV 89701 775/684-5670 775/684-5683
Mr. Scott G. Wasserman Legislative Counsel Bureau 401 S. Carson St. Carson City NV 89710 702/687-6830 702/687-6761 wasserman@lcb.state.nv.us
NY
Mr. Henry S. Fraser 7th Floor 220 South Warren St. Syracuse NY 13202 315/475-8461
Mr. Richard B. Long P.O. Box 2039 One Marine Midland Plaza Binghamton NY 13902 607/723-9511 607/772-6093 rlong@cglawllp.com
Mr. Richard B. Smith Davis, Polk & Wardwell 450 Lexington Avenue New York NY 10017 212/450-4066 212/450-5536 rsmith@dpw.com
Mr. Keith C. St. John 135 Green St. Albany NY 12202 518/463-9874 518/463-7874 keith_stjohn@msn.com
Ms. Sandra S. Stern 509 Madison Avenue Suite 612 New York NY 10022 212/207-8150 212/317-1030 SSternLaw@aol.com
Mr. Lewis Bart Stone 52nd Floor 200 Park Ave. New York NY 10166 212/878-8097 212/878-3134 stonel@rw.com
Mr. Justin L. Vigdor 2400 Chase Sq. Rochester NY 14604 716/232-5300 716/232-3528 jvigdor@boylanbrown.com
Mr. Paul L. Weafer Legislative Bill Drafting CommRoom 311, The Capitol Albany NY 12224 518/455-7500 518/455-7598
OH
Mr. Boris Auerbach 332 Ardon Ln. Wyoming OH 45215 513/821-1828 513/821-1828 AttyBoris@aol.com
Mr. Michael Burns Legislative Service Commission9th Floor 77 S. High St. Columbus OH 43266 614/466-7853 614/644-1721
Prof.William L. Evans Ohio Northern University Pettit College of Law 525 S. Main St. Ada OH 45810 419/772-2208 419/772-1875 w-evans@onu.edu
Mr. Stanley M. Fisher 1100 Huntington Bldg. 925 Euclid Avenue Cleveland OH 44115-1475 216/696-2476 216/696-2645 Sfisher@arterhadden.com
Mr. Leon M. McCorkle , Jr.P.O. Box 387 Dublin OH 43017-0387 614/764-6868 614/764-3243 lee_mccorkle@wendys.com
Ms. Nancy Rogers Ohio State University College of Law 55 West 12th Ave. Columbus OH 43210 614/292-4223 614/292-1383 rogers.23@osu.edu
OK
Prof.Owen L. Anderson University of Oklahoma College of Law 300 Timberdell Rd. Norman OK 73019 405/325-5405 405/325-0389 canderson@hamilton.law.edu
Mr. Bryce A. Baggett 2404 N.W. 113th Pl. Oklahoma City OK 73120-7306 405/755-3261
Ms. Duchess Bartmess State Capitol Building 2300 N. Lincoln Blvd. Suite 2B Oklahoma CitOK 73105 405/523-4261 405/521-3353 duchess.bartmess@oklaosf.state.ok.us
SpeakLoyd Benson State Capitol Oklahoma CitOK 73100 405/335-7541 405/335-7543
Mr. Kenneth W. Elliott City Place Building Twenty-Second Floor 204 North Robinson AOklahoma CitOK 73102 405/236-3600 405/239-2265 kwe@flash.net
Hon. Robert H. Henry U.S. Court of Appeals Room 2421 200 N.W. Fourth St. Oklahoma CitOK 73102 405/231-5618 405/231-4887
Prof.Fred H. Miller University of Oklahoma College of Law 300 Timberdell Rd. Norman OK 73019 405/325-4699 405/325-0389 fmiller@ou.edu
Hon. Marian P. Opala Supreme Court Room 238, State Capitol Oklahoma CitOK 73105 405/521-4914 405/521-3089
Mr. Mark H. Ramsey Room 309, State Capitol Bldg. Oklahoma CitOK 73105 405/521-5530 405/521-5599 ramsey@lsb.state.ok.us
Sen. R. StrattoTaylor P.O. Box 309 Claremore OK 74018 918/343-4100 918/343-4900
Prof.Leo H. Whinery University of Oklahoma College of Law 300 Timberdell Rd. Norman OK 73019 405/325-4699 405/325-6282 lwhinery@ou.edu
Mr. Brent W. Wright 406 S. Boulder Ave. Suite 701 Tulsa OK 74103 918/582-7223 918/584-0532 wwlaw@morelaw.com
OR
Mr. Gregory Chaimov S-101 State Capitol Salem OR 97310-0630 503/986-1243 503/373-1043 Gregory.A.Chaimov@state.or.us
Ms. Martha Lee Walters Suite 220 975 Oak St. Eugene OR 97401 541/683-2506 541/683-3149
Mr. D. Joe Willis Stes. 1600-1950, Pacwest Ctr. 1211 S.W. 5th Ave. Portland OR 97204 503/222-9981 503/796-2900 JW@schwabe.com
Mr. Oglesby H. Young Suite 800, Pacific Bldg. 520 S.W. Yamhill St. Portland OR 97204 503/226-6151 503/224-0388
PA
Mr. David L. Hostetter Joint State Government Commiss108 Finance Bldg. Harrisburg PA 17120 717/783-9376 717/787-7020
Mr. Thomas A. Hutton Governor's Office of General C333 Market St. 17th Floor Harrisburg PA 17101 717/787-9333 717/783-7206 thutton@ogc.cmicpo1.state.pa.us
Mr. Raymond P. Pepe 13th Floor 240 N. Third St. Harrisburg PA 17101-1507 717/231-5988 717/231-4501 peperp@KL.com
Prof.Ann Bowen Poulin Villanova University School of299 North Spring Mill RoGarey Hall Villanova PA 19085 610/519-7082 610/519-6282 apoulin@law.vill.edu
Prof.Curtis R. Reitz University of Pennsylvania School of Law 3400 Chestnut St. PhiladelphiaPA 19104 215/898-7464 215/573-2025 creitz@oyez.law.upenn.edu
Mr. Paul A. Tufano Office of General Counsel 225 Main Capitol Bldg. Harrisburg PA 17120 717/787-2551 717/772-8570
Mr. Robert W. Zech Legislative Reference Bureau 641 Main Capitol Bldg. Harrisburg PA 17120 717/783-8079 717/783-2396 lrb01@palegis.cmic.state.pa.us
PR
Mr. Francisco L. Acevedo P.O. Box 190998 16th Floor Banco Popular Ctr. Hato Rey PR 00919 787/753-8914 787/753-8402
Prof.Alberto Ferrer Inter American University School of Law P.O. Box 8513 San Juan PR 00910 787/722-5429
RI
Mr. George C. Berk 2500 Hospital Trust Twr. Providence RI 02903 401/831-5900 401/276-6611
Mr. Ronald W. Del Sesto Hall's Building 49 Weybosset St. Providence RI 02903 401/421-1492 401/421-9080 rwd@delsestolaw.com
Ms. Cay C. Massouda Law Revision Office State House Providence RI 02903 401/222-3614
Mr. John F. McDonough Office of Legislative Council Suite 17 State House Providence RI 02903 401/277-2653 401/277-6065
Hon. Thomas H. Needham Superior Court 250 Benefit St. Providence RI 02903 401/222-3250 401/461-5878 cayce-311@worldnet.att
Mr. Raymond A. Pacia 50 Power Rd. Pawtucket RI 02860 401/727-1500 401/722-4490
Sen. John M. Roney 344 Wickenden St. Providence RI 02903
Dean Anthony J. Santoro Roger Williams University One Old Ferry Rd. Bristol RI 02809 401/254-3201 401/254-3158
SC
Mr. Thomas S. Linton 4323 Shorebrook Dr. Columbia SC 29206 803/787-3585
Mr. Peden B. McLeod P.O. Box 230 Walterboro SC 29488-0003 843/549-2516 843/549-2306
Mr. John W. Thomas 2nd Floor, 6 Calendar Ct. P.O. Box 6216 Columbia SC 29206 803/782-4888 803/782-9812
SD
Hon. Michael DeMersseman P.O. Box 1820 Rapid City SD 57709-1820 605/342-2814 605/342-0732 Law@DemJen.com
Hon. Barbara Everist 2601 S. Minnesota Ave. Suite 105-301 Sioux Falls SD 57105 605/339-0565 605/339-0565
Mr. Richard O. Gregerson Woods, Fuller, Schultz & Smith300 South Phillips AvenuSuite 300 Sioux Falls SD 57104-6322 605/336-3890 605/339-3357
Mr. Scott N. Heidepriem 431 N. Phillips Ave. Suite 400 Sioux Falls SD 57104 605/338-4304 605/338-4162 scott@jhmmj.com
Mr. Gene N. Lebrun P.O. Box 8250 Suite 900 909 St. Joseph St. Rapid City SD 57709 605/342-2592 605/342-5185 glebrun@lynnjackson.com
TN
Mr. George H. Buxton , III31 East Tennessee Avenue Oak Ridge TN 37830 423/482-4920 423/482-8690
Mr. Ross B. Clark , II Brinkley Plaza 80 Monroe Ave. Suite 700 Memphis TN 38103-2467 901/524-4922 901/524-4936 rclark@armstrongallen.com
Mr. James A. Clodfelter Office of Legal Services G-10 War Memorial Bldg. Nashville TN 37243 615/741-3056
Mr. Charles A. Trost Nashville City Center 511 Union St., Suite 2100 Nashville TN 37219-1760 615/252-2411 615/244-6804 ctrost@wallerlaw.com
TX
Prof.Marion W. Benfield , Jr.10 Overlook Circle New BraunfelTX 78132 830/608-9776 830/608-9806 mbenfield@compuvision.net
Mr. Patrick C. Guillot Suite 900 8080 N. Central Expressway Dallas TX 75206 214/368-1500 214/987-0696
Mr. Peter K. Munson P.O. Box 1949 123 South Travis St. Sherman TX 75091-1949 903/893-8161 903/893-1345
Hon. David Peeples 224th District Court Bexar County Courthouse 100 Dolorosa San Antonio TX 78205 210/335-2132 210/335-2945
Prof.Marilyn E. Phelan Texas Tech University School of Law 1801 Hartford Ave. Lubbock TX 79409 806/742-3791 806/742-1629 xymep@ttacs.ttu.edu
Mr. Stanley Plettman 4th Floor 470 Orleans St. Beaumont TX 77701 409/838-6412 409/838-6959
Mr. Leonard Reese Legislative Council P.O. Box 12128 Capitol Station Austin TX 78711 512/463-1151
Mr. Rodney W. Satterwhite P.O. Box 1540 Midland TX 79702 915/682-1616 915/682-4884
Mr. Harry L. Tindall 2800 Texas Commerce Tower 600 Travis St. Houston TX 77002-3094 713/229-8733 713/228-1303 htindall@tindallfoster.com
UT
Prof.Henry M. Grether , Jr.20 Northridge Way Sandy UT 84092 801/523-6255
Sen. Lyle W. Hillyard 175 E. 100, N. Logan UT 84321 435/752-2610 435/753-8895
Mr. Reed L. Martineau P.O. Box 45000 10 Exchange Pl. Salt Lake CiUT 84145 801/521-9000 801/363-0400 RMartineau@SCMLAW.com
Ms. M. Gay Taylor Ofc. of Legis. Research & Gen.436 State Capitol Salt Lake CiUT 84114 801/538-1032 801/538-1712 GTAYLOR@EMAIL.STATE.UT.US
Rep. John L. Valentine 120 E. 300 North St. P.O. Box 778 Provo UT 84606 801/373-6345 801/377-4991
VA
Ms. Ellen F. Dyke Suite 400 2010 Corporate Ridge McLean VA 22102 703/760-1600 703/821-8949
Mr. Kenneth LawrencForan 5001 Seminary Rd. Alexandria VA 22311-1920 703/931-8824 703/931-8824*9
Prof.J. Rodney Johnson University of Richmond School of Law Richmond VA 23173 804/289-8200 804/289-8683 johnson@uofrlaw.richmond.edu
Mr. Brockenbrough Lamb , Jr.Suite 1200 909 E. Main St. Richmond VA 23219 804/697-4100 804/697-4112
Mr. Esson McKenziMiller , Jr.Division of Legislative Servic2nd Floor 910 Capitol St. Richmond VA 23219 804/786-3591 804/371-0169 emiller@leg.state.va.us
Hon. Pamela Meade Sargent P.O. Box 846 Abingdon VA 24212 540/628-6021 540/628-6072 pamela_sargent@vawd.uscourts.gov
VI
Mr. Amos W. Carty , Jr.Office of Governor Government House 21-22 Kongens Gade Charlotte Amalie St. Thomas VI 00802 340/774-0001 340/774-5379
Mr. Elmo A. Adams , Jr.Legislature of the Virgin IslaP.O. Box 1690 St. Thomas VI 00804 340/693-3701 340/693-3659 eadams@mail.senate.gov.vi
Mr. Tom Bolt Corporate Place Royal Dane Mall St. Thomas VI 00802-6410 340/774-2944 340/776-1639 tbolt@vilaw.com
SenatMiguel Camacho 22nd Legislature of the VI Capitol Building St. Thomas VI 00802 340/772-0546 340/772-2376
VT
Mr. Richard T. Cassidy 100 Main St. P.O. Box 1124 Burlington VT 05402 802/864-6400 802/860-1565 rcassidy@hoffcurtis.com
Mr. David A. Gibson 40 Park Pl. P.O. Box 1767 Brattleboro VT 05302 802/254-6011 802/254-2602
Mr. Clarke A. Gravel P.O. Box 369 76 St. Paul St. Burlington VT 05402 802/658-0220 802/658-1456 cgravel@gravshea.com
Mr. Peter F. Langrock P.O. Drawer 351 Middlebury VT 05753 802/388-6356 802/388-6149
Mr. Carl H. Lisman 84 Pine St. P.O. Box 728 Burlington VT 05402 802/864-5756 802/864-3629 clisman@lisman.com
Mr. William P. Russell Legislative Council State House Montpelier VT 05602 802/828-2231 802/828-2424
WA
Ms. Linda O. Smiddy Vermont Law School P.O. Box 96 South RoyaltVT 05068-0096 802/763-8303 802/763-2663 lsmiddy@vermontlaw.edu
JudgeMarlin J. Appelwick Court of Appeals One Union Square 600 University St. Seattle WA 98101 206/389-3926 206/389-3946 J_m.appelwick@courts.wa.gov
Prof.Robert H. Aronson University of Washington Schoo1100 NE Campus Parkway Seattle WA 98105-6617 206/543-7423 206/543-5671 raron@u.washington.edu
Mr. Dennis W. Cooper Office of Code Reviser Legislative Bldg. Olympia WA 98504 360/786-6777 360/586-6480
Hon. Cynthia Imbrogno United States District Court P.O. Box 263 Spokane WA 99210 509/353-0660 509/353-0661 usmjcimbr@hotmail.com
WI
Mr. Lawrence J. Bugge 313 Walnut Grove Dr. Madison WI 53717-1228 608/833-8086 608/833-8086 ljbugge@itis.com
Hon. William G. Callow 704 Butternut Rd. Madison WI 53704 608/241-9122
Rep. David Cullen Room 5 North State Capitol Madison WI 53702 608/267-9836 6082667038
Mr. Peter J. Dykman Legislative Reference Bureau P.O. Box 2037 100 N. Hamilton St. Madison WI 53701 608/266-7098 608/264-8522 peter.dykman@legis.state.wi.us
Sen. Gary R. George Room 118 South P.O. Box 7882 Madison WI 53707-7882 608/266-2500 608/266-7381 Sen.George@legis.state.wi.us
Mr. Shaun P. Haas Legislative Council Suite 401 1 E. Main St. Madison WI 53701-2536 608/267-9025 608/266-3830
Sen. Joanne B. Huelsman 119 Martin Luther King Blvd. Room 510 Madison WI 53703 608/266-2635 608/267-5172 Sen.Heulsman@legis.state.wi.us
Mr. Bruce Munson Revisor of Statutes Bureau Suite 800 131 W. Wilson St. Madison WI 53703 608/267-3536 608/264-6978 bruce.munson@legis.state.wi.us
Mr. Orlan L. Prestegard 430 Orchard Dr. Oregon WI 53575 608/835-3624
WV
Mr. Richard E. Ford 203 W. Randolph St. Lewisburg WV 24901 304/645-1859 304/645-1918 fordlaw@inetone.net
Mr. John L. McClaugherty P.O. Box 553 Charleston WV 25322 304/340-1349 304/340-1044 jmcclaugherty@jacksonkelly.com
Hon. Frederick P. Stamp , Jr.U.S. District Court P.O. Box 791 Wheeling WV 26003 304/233-1120 304/233-0402
WY
Mr. Charles G. Kepler P.O. Box 490 1135 14th St. Cody WY 82414 307/527-7891 307/527-7897
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MICHAEL B. GETTY, Room 2510, Richard J. Daley Center, 50 W. Washington Street, Chicago, IL 60602, Chair
PHILLIP CARROLL, 120 E. Fourth Street, Little Rock, AR 72201
DAVID CALVERT DUNBAR, P.O. Box 2990, Jackson, MS 39207
JOSE FELICIANO, 3200 National City Center, 1900 E. 9th Street, Cleveland, OH 44114-3485, American Bar Association Member
ELIZABETH KENT, P.O. Box 2560, Honolulu, Hawaii, 96804
NANCY ROGERS, Ohio State University, College of Law, 55 W. 12th Avenue, Columbus, OH 43210, National Conference Reporter
FRANK A. E. SANDER, Harvard University Law School, Cambridge, MA 02138, American Bar Association Member
BYRON D. SHER, State Capitol, Suite 2054, Sacramento, CA 95814
MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401
JOHN L. MCLAUGHERTY, P.O. Box 553, Charleston, W.Va., 25322. President
STANLEY M. FISHER, 1100 Huntington Building, 925 Euclid Avenue, Cleveland, OH 44115-1475, Division Chair
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus
THE HON. CHIEF JUSTICE THOMAS J. MOYER, Co-Chair, Ohio Supreme Court, 30 E. Broad Street, Columbus, OH 43215
MS. ROBERTA COOPER RAMO, Co-Chair, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Sunwest Bldg., Ste. 1000, Albuquerque, NM 87102
THE HON. MICHAEL B. GETTY, NCCUSL Representative, Room 2510, Richard J. Daley Center, 50 W. Washington Street, Chicago, IL 60602
THE HON. CHIEF JUDGE ANNICE M. WAGNER, Court of Appeals of the District of Columbia, 500 Indiana Ave., NW, Washington, DC 20001
JAMES DIGGS, PPG Industries, 1 PPG Place, Pittsburgh, PA 15272
JOSE FELICIANO, Baker & Hostetler, 3200 National City Center, 1900 East 9th St., Cleveland, OH 44114
JUDITH SAUL, Community Dispute Resolution, 120 W. State Street, Ithaca, NY 14850
FRANK A.E. SANDER, Harvard Law School, Cambridge, MA 02138
NANCY ROGERS, Ohio State University, College of Law, 55 W. 12th Avenue, Columbus, OH 43210, Coordinator
RICHARD C. REUBEN, Reporter, Harvard Law School, 506 Pound Hall, Cambridge, MA 02138
Are We Going the Right Direction with the Uniform Mediation Act?
The last Uniform Act on ADR was adopted by all but four states (the Uniform Arbitration Act) so this is probably pretty important.
Do we want people to be able to speak candidly in mediation, without fear that their own words may be used against them later in trial? Yes? If you believe this is important, then you will not like several major parts of the 3/8/99 Draft of the Uniform Mediation Act.
First, imagine you are the mediator, talking to an ordinary disputant before the mediation. You say, "What you say here will only stay confidential if nobody later decides it falls under one of a dozen broad exceptions." How does this person respond?
Second, suppose a disputant later discusses what happened in mediation with other involved neighbors, or affected business associates, or with a CPA they may be consulting on the tax consequences of alternative settlements. The Draft further strips away confidentiality protections.The 3/8/99 Draft casts the protection as a privilege. Unknowing waiver of that privilege merely by talking about what happened is the downside of this approach.
Lastly, any witnesses who attend a mediation (who may get sued later themselves) get no protection at all. How candid will they be? Will they even come?
Do we really want to encourage more subpoenas and lawsuits against mediators? No? The 3/8/99 Draft says "the only means to hold [mediators] accountable... is to preserve the possibility of civil liability."
The Draft also says mediators can be subpoenaed to testify against any doctor, lawyer, architect, realtor or other professional whose dispute they mediated, if someone files a complaint to their licensing agency. What licensed professional will come to mediation when what they say may go straight to their licensing agency?
In California, we have taken a different approach. We have enacted laws saying that mediators cannot be subpoenaed to testify against any party in later civil trials and hearings (Evidence Code Sections. 703.5 and 1121). We have said that if any party is harmed by the use of confidential mediation communications in any later civil trial or hearing that is grounds for a new trial or hearing (Evidence Code Sec. 1128).
Are you concerned about the direction this Uniform Act is going? If so, please forward this, start discussions in your organizations, and/or briefly email your concern to the Drafting Committee through its Reporters, Nancy Rogers <nrogers@magnus.acs.ohio-state.edu> and Richard Reuben <rcreuben@law.harvard.edu>.
For the full text of the 3/8/99 Draft of the Uniform Mediation Act, visit <http://www.mediate.com/articles/mediationact.cfm>. For a more detailed description of serious concerns about this draft please see following letter.
Thank you,
Ron Kelly, Mediator
Observer to the Drafting Committee
Email: ronkelly@igc.org (phone: 510-843-6074)
March 16, 1999
Hon. Michael B. Getty, Chair, NCCUSL Drafting Committee
Ms. Roberta Cooper Ramos, Co-Chair, ABA Dispute Resolution Section Drafting Committee
Hon. Chief Justice Thomas J. Moyer, Co-Chair, ABA Dispute Resolution Section Drafting Committee
Professors Nancy Rogers and Richard Reuben, Project Reporters, NCCUSL/ABA Uniform Mediation Act Project
Re: Serious Concerns About the Direction of the 3/8/99 Draft of the Uniform Mediation Act
Dear Co-Chairs Getty, Ramo, and Moyer, Members of the ABA/NCCUSL Uniform Mediation Act Drafting Committees, and Committee Reporters,
Thank you for the opportunity to comment on the March 8, 1999 Draft of the proposed Uniform Mediation Act. I have the highest respect for your work on the Drafting Committee and the Academic Advisory Faculty. I know you and they are donating your time to this effort. I especially appreciate the work of Nancy Rogers. As NCCUSL Drafting Committee Reporter, I understand she has lead responsibility for drafting and redrafting each new version of the proposed Act for the Conference. I believe deeply that your important work will shape the development of the emerging field of mediation for decades to come. I know the last uniform act addressing alternative dispute resolution (the Uniform Arbitration Act) was adopted in whole or substantial part by all but four states. I hope you will understand that my comments are those of someone who also donates his time without compensation to try to form sound public policy on mediation.
My comments are also those of someone who brings a decade of experience in the drafting and sponsoring of mediation statutes in California. As you know, I've spent the past ten years convening and attending statewide conferences, public hearings, and private hardball negotiating meetings to help craft California's laws defining and governing mediation. These meetings involved legislators and legislative commissions, trial lawyers, mediation providers and consumers, court staff, consumer groups, and representatives of all branches of government.
There are many outstandingly positive sections of this Draft. The language in Sections 1 (6) and 4 (c) protecting the rights of disputants to bring lawyers and other support personal to a mediation, and the protections against mediator coercion in Section 3 (a) are two major ones. I am very concerned however, that the current draft, if enacted, would strip away strong current protections for the integrity of mediation which we have spent fifteen years carefully crafting and enacting into California law. My comments are based primarily on why I believe the current draft would face strong and well-organized opposition if proposed in California. These high-lighted concerns mostly involve generic issues, and would apparently also apply equally to other states. If enacted in California, the current draft would remove existing protections from whole categories of mediation which currently have protection, create so many subjective exceptions to the general rule of confidentiality that participants could no longer feel confident to speak openly with their mediator, and greatly increase the number of mediators who will be subpoenaed and sued.
Following is a line-by-line identification of the troubling sections, the specific concerns, the reasoning, and possibilities for alternative approaches or language (and a cite to the code section if drawn from already-enacted law here).
3/8/99 Draft Section 1 (3), beginning Page 5, line 8,
"SECTION 1. DEFINITIONS. In this Act:...
(3) "Mediation communication" means an oral or written assertion, or nonverbal conduct of an individual who intends it as an assertion and that is made:
(A) after a court or governmental entity appoints a mediator, or two or more non-aligned disputants select a mediator;
(B) by (i) a [mediation participant] in the presence of the mediator;(ii) the mediator; or (iii) the [disputants or their representatives] when asked to communicate by the mediator, if their communications relate to the subject of the mediation; and
(C) before the disputants make a record of their agreement, the mediator announces that the mediation has been concluded, only non-aligned disputants remain as participants, or there is no communication between the mediator and any of the parties relating to the dispute within [number] days. The mediator and the parties may shorten or extend this time by agreement."
Concerns:
First, the definition is too complex for ordinary people to understand clearly. Second, a narrow definition will exclude many from protection. This definition, if enacted, would remove current protections for many California disputants, such as those whose mediator was not selected by the parties, but appointed by a community program or a neutral agency like the American Arbitration Association. They would apparently not be covered by (A). It would remove protections for certain normal mediation communications, such as an unsolicited phone call from a disputant to a mediator during a mediation process. The call would apparently not be covered by (B). It also uses the definition of communications to try to define when mediation begins and ends.
Possible Alternative Language and Approach:
"Mediation communication means all communications, negotiations, or settlement discussions by and between participants in the course of a mediation" (From California Evidence Code Sec. 1119c)
Define when mediation ends by separating off the language in the Draft's section (C). See also Cal. Ev. Code Section 1125. This provides that mediation confidentiality ends when there is a writing settling the dispute or ending mediation by either the mediator or a disputant (not provided for in the 3/8/99 Draft), or when communications end for ten days. (This last section was a firm requirement by the Consumer Attorneys of California) Also, shouldn't line 21 state that mediation ends when only aligned disputants remain, rather than when "only non-aligned disputants remain as participants" ?
* * *
3/8/99 Draft Section 2 - Page 15, line 1:
"SECTION 2. Confidentiality: Protection Against Compelled Disclosure; Admissibility.
(a) A disputant may refuse to disclose, and prevent any other individual from disclosing, mediation communications in a civil, juvenile, criminal misdemeanor, or administrative proceeding.
(b) A mediator may refuse to disclose, and prevent any other individual from disclosing, that mediator"s communications during mediation and may refuse to provide evidence of mediation communications in a civil, juvenile, criminal misdemeanor or administrative proceeding.
(c) An individual waives the rights conferred in (a) and (b)if the individual either
(1) acknowledges that the individual does not seek the protection, or
(2) voluntarily discloses a significant part of a mediation communication or mediation consultation in a manner that is inconsistent with maintaining the confidentiality. Such waiver by disclosure shall be limited to the extent of the disclosure. This rule does not apply if the disclosure itself is privileged.
The protection is not waived unless all persons who are entitled to the protection waive it."
Concern:
Only "mediators" and "disputants" as defined in Section 1 (1) and (5) can claim protection, not additional related participants whose candor may unlock the impasse. Suppose there is an owner/contractor or buyer/seller dispute not yet filed in court. Ideally you want the project architect or the seller"s realtor to come in and help add information, and possibly expertise in evaluating and generating creative options for solving the problem. They will be advised against being candid, or even participating at all by their counsel. Their current ability to speak candidly in California mediations would be removed by this draft, because they are "participants" not yet involved in the dispute. They would rightly fear that their own words might be used against them if the dispute widens and goes to court.
Proposed Alternative Approach and Language:
Promote candor by providing protection to the statements of all participants, whether or not they are currently "involved in the dispute". Provide that if all participants expressly agree to later change their off-the-record statements to on-the-record statements that can be used against them, they can do so.
" (a) A [mediation] communication...is not made inadmissible...by...this chapter if either...:(1) All persons who conduct or otherwise participate in the mediation expressly agree...[or] (2) The communication...was prepared by or [for]...fewer than all the mediation participants, those participants expressly agree...and the communication...does not disclose anything said or done...in the...mediation. [For expert reports, photos, etc.] (b) ...if the neutral person who conducts a mediation...agrees...that agreement also binds any other person [assisting the mediator]..." (Cal. Ev. Code Sec. 1122 Disclosure by Agreement)
General Concern:
The Reporter"s Notes on this section appear to argue that you must choose between one of three different approaches: 1) creating a privilege, 2) establishing the inadmissibility of mediation communications as evidence, or 3) making mediators or others incompetent to testify in later proceedings. A main benefit claimed for the privilege approach in past hearings was that many unrelated laws protect communications which are labeled "privileged". Yet the draft uses a privilege structure without using the word "privilege". This brings the central disadvantage of privilege without the benefit. The glaring problem of the privilege approach is unknowing waiver. Under this Draft, protection will be unknowingly waived when an unsophisticated disputant, between sessions, discusses what happened in mediation with other peripherally involved parties like other neighbors in a complex or other subcontractors on a job, or with a CPA while trying to understand the tax ramifications of alternative proposed settlements. The privilege approach requires secrecy to get inadmissibility.
Proposed Alternative Approach and Language:
Use all three forms of protection. California has found that all three approaches are complimentary and necessary rather than being mutually exclusive. Cal. Ev. Code Sec. 1119 provides both inadmissibility and a form of privilege in protection from discovery and compelled testimony:
"Sec. 1119 Mediation Confidentiality. Except as otherwise provided in this chapter: (a) No evidence of anything said...[and] (b) No writing, as defined in § 250...prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure...shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which...testimony can be compelled..."
Cal Ev. Code Sec. 703.5 additionally guarantees that no mediator can testify for or against any party later in a civil proceeding if the matter does not settle. This is considered a critical protection guaranteeing the neutrality of the mediator and the process. As argued by counsel for California"s State Mediation and Conciliation Service, the National Labor Relations Board and the Ninth Circuit Court of Appeals concluded that "the complete exclusion of mediator testimony is necessary" for effective mediation. (NLRB v. Macaluso, 618 F.Ed 51 (9th Cur. 1980), cited in the Draft"s Reporter"s Notes page 8, line 8)
Sec. 703.5 states in relevant part that "...no mediator shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding, except as to [one]...that could...constitute a crime...or give rise to disqualification..."
Cal. Government Code Sec. 11420.30 (a) states that "Anything said, any admission made, and any document prepared in the course of, or pursuant to, mediation under this article is a confidential communication, and a party to the mediation has a privilege to refuse to disclose and to prevent another from disclosing the communication, whether in an adjudicative proceeding, civil action, or other proceeding.
* * *
3/8/99 Draft Section 2 (d) (3) and (4) - Page 20, line 32:
"(d) There is no protection under (c): ...
(3) For reports of professional misconduct when made to the agency charged by law to oversee professional conduct.
(4) To the degree ruled necessary by a court or agency if a party files a claim or complaint against the mediator..."
Concerns:
Re (3): The 3/8/99 Draft, if enacted, would remove existing protections and encouragements for licensed professionals to resolve disputes through mediation. California expressly extended mediation protections to licensed professionals, such as doctors, architects, and realtors. A doctor who could otherwise talk candidly with a patient in mediation would be counseled that she could not afford to do so. The patient could use anything the doctor said against her later in an administrative hearing to revoke her license.
Under section (4), if a participant wanted to break open the confidentiality of the mediation, one of the surest ways to do it would be to file a claim against the mediator. A fair hearing would often require everyone to describe exactly what they said or did to argue complex patterns of whether or not the mediator was justified in her/his actions. This provides an open invitation to break confidentiality by suing mediators.
Additional Concerns:
Providing a long list of exceptions, many of which are dependent on later events, undermines confidence in predictable confidentiality. The Consumer Attorneys of California has stated that "There is universal agreement that settlement negotiations, and discussions during mediation, should be held confidential for all time." (August 7, 1998 letter to the California Law Revision Commission regarding its Study K-410).
The long list of exceptions, and most especially the additional two recommended by the Faculty Advisory Committee (beginning page 23 line 36), would terminally undermine the ability of mediators to assure disputants they could speak candidly.
Proposed additional exception (d) (7) would remove protections in later actions "To establish the validity or invalidity of a recorded agreement." This means that confidentiality could evaporate if anyone later changed their mind about a settlement they had signed and claimed false statements were made in mediation by other participants or the mediator.
Proposed additional exception (d) (8) would remove protections in later actions in any situation "When the court determines, after a hearing, that disclosure is necessary to prevent a manifest injustice of such magnitude as to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings." Protecting people from "manifest injustice" has undisputed appeal, but imagine trying to explain what this really means to a potential mediation participant. "You can be sure that everything is confidential unless a judge later decides it shouldn't be."
* * *
3/8/99 Draft Section 3 - Page 25, line 16:
"SECTION 3. CONFIDENTIALITY: NON-DISCLOSURE BY THE MEDIATOR.
(a) Unless all of the parties agree or the mediator is compelled to testify pursuant to an exception in 2(d) of the statute, a mediator shall not disclose mediation communications or mediation consultations outside the mediation including a report, assessment, evaluation, recommendation, or finding of any kind by the mediator to others outside the mediation, including to the judge, or other appointing authority, who may make rulings on or persons who might investigate the matters in dispute."
Concern:
This section is a critical part of protecting mediation participants against overzealous mediators coercing a settlement. The wording of the draft should be clarified so it can not be misinterpreted to allow, instead of prohibit, mediator reports to judges or investigators. In California, many were shocked to find that mediation was used to subvert one of the most basic due process rights - namely the right to hear what is said against you to the judge hearing your case. Courts were requiring that if a case was not settled in mediation, the mediator use what was said in mediation to make secret recommendations to the judge hearing the case that neither party was allowed to see. (See Mediation Confidentiality, 26 California Law Revision Commission Reports 407 (1996)).
Because the Draft states "a mediator shall not disclose mediation communications... outside the mediation including a report... to the judge..." it may be misinterpreted to allow and provide secrecy for such reports. This interpretation is hard for many to believe, but was routine practice in some courts in California before enactment of Cal. Ev. Code Sec. 1152.6, (later expanded in to 1121) which explicitly prohibited this practice in all but child custody mediations conducted by the court.
Suggested Alternative Language:
(a) Except as otherwise provided herein, a mediator shall not disclose mediation communications or mediation consultations outside the mediation, unless all of the mediation participants expressly agree in writing. Neither a mediator nor anyone else may submit to a court or other adjudicative body, or to persons who might investigate the matters in dispute, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator, concerning a mediation conducted by the mediator. No court, adjudicative body, or investigator may consider any such report by the mediator. This prohibition shall not apply to a report that is mandated by court rule or other law provided that the report states only whether a participant appeared at a mediation and whether an agreement was reached.
This language was drawn from Cal. Evidence Code Sec. 1121, Mediator Reports and Communications. "Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing..."
The statement of legislative intent of this California section by the Law Revision Commission states that it "applies to all types of adjudications, including arbitrations and administrative adjudications,...the focus is on preventing coercion...a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decisionmaker on the merits of the dispute or reasons why mediation failed to resolve it...A mediator"s report...may disclose mediation communications only if...all persons who participate...agree to the disclosure..."
* * *
3/8/99 Draft Section - Section 3 (b) (3, 4, 5) Page 25, line 25, page 26 line 3:
"(b) A mediator does not violate the general rule of non- disclosure:
(3) For a record of an agreement by two or more parties.
(4) For reports of professional misconduct when made to the agency charged by law to oversee professional conduct.
(5) To file a claim or complaint with the appropriate authority or court against the mediator."
Concern:
Having seven exceptions (eight if the Faculty Advisory Committee recommendation is accepted) undercuts the protection participants could otherwise expect. At least in California, the legislature has unanimously declared that mediators should not be providing the kind of reports and testimony described in exceptions (3), (4), and (5). The wording of the current draft is also unclear.
Suggested Alternate Approach:
Omit exceptions (3), (4), and (5)
* * *
3/8/99 Draft Section 4 - Page 28, line 7:
"SECTION 4. QUALITY OF MEDIATION.
(a) Qualifications. Courts and administrative agencies that refer parties to a mediator or pool of mediators may establish qualifications for these mediators. A mediator shall disclose his or her qualifications if requested by a mediation disputant or representative of a disputant."
Concern:
Too many courts and agencies have set up panels and simply copied the "qualifications" for judicial arbitrators, namely "lawyers only need apply". This harms the public and the field by restricting referrals to mediators from a single profession.
Suggested Additional Language:
Add "Mediators should not be required to possess specific academic degrees or professional licenses, nor should the possession of a specific academic degree or professional license disqualify a person from acting as a mediator" (From the California Dispute Resolution Counsel Principle II. A.)
* * *
3/8/99 Draft Section 4 (b) - Page 28, line 12:
"(b) Immunity. Except as provided by [section or common law judicial immunity doctrines], a mediator shall not be immune from civil liability for matters arising out of the mediation. Any contractual provision purporting to disclaim such liability shall be void as a matter of public policy. "
Concern:
The anti-immunity phrasing of this section will discourage states that have not yet enacted mediator immunity statutes from doing so. Mediators in many states are still organizing to try to achieve immunity. This section further seems designed to try to outlaw clauses in many current commercial mediation contracts. Disputants in some commercial lawsuits are trying to completely destroy each other economically. Many commercial mediators insist that the parties indemnify them and hold them harmless as a condition of getting in between the warring parties. This follows common business practice in risky situations. The Reporter"s Notes at page 26 line 32, and page 30, line 15 argue that making sure mediators are exposed to lawsuits seems the only reasonable public policy.
Alternative Approach:
In California we have adopted a clear alternative to this approach. It involves two aspects. First, strong statutory protections against any participant, mediator or judge, using mediation communications against any participant. Second, any such use in a later trial, arbitration or hearing which produces substantial prejudice is grounds to overturn the decision or declare a mistrial. California"s choice was to provide testimonial immunity to protect mediators from subpoena. It was to provide a new hearing as a remedy for anyone prejudiced by illegal use of confidences shared in mediations.
Suggested Alternative Language:
Omit Section 4 (b).
Add sanctions such as the following for misuse of mediation communications. "Any reference to a mediation during any subsequent trial is an irregularity in the proceedings [under]...Sec. 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding...and granting a new or further hearing...if the reference materially affected [a party"s] substantial rights..." (From California Evidence Code Section 1128)
* * *
Since I have only had the 3/8/99 Draft for a few days, and wanted to respond before the hearing begins later this week, I apologize for the rushed nature of this letter. Thank you again for the opportunity to comment.
Respectfully submitted,
Ron Kelly, Mediator
Observer to the Drafting Committee
2731 Webster Street
Berkeley, California 94705
(phone: 510-843-6074)
(fax: 510-843-4439)
(Email: ronkelly@igc.org)