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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)
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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.</