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UNIFORM MEDIATION ACT

(Last Revised or Amended in 2003)

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

at its

ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-TENTH YEAR

WHITE SULPHUR SPRINGS, WEST VIRGINIA

AUGUST 10–17, 2001

AMENDMENTS APPROVED

at its

 ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-TWELFTH YEAR

IN WASHINGTON, DC

AUGUST 1-7, 2003

WITHOUT PREFATORY NOTE AND COMMENTS

Approved by the American Bar Association

Philadelphia, Pennsylvania, February 4, 2002

Copyright © 2003

By

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

December 10, 2003

Uniform Mediation Act (UMA)

Drafted by:

National Conference of Commissioners on Uniform State Laws (NCCUSL)

211 E. Ontario Street, Suite 1300, Chicago, IL  60611, 312-915-0195, www.nccusl.org

Brief description of act:

The Uniform Mediation Act provides a statute applicable to all mediations that prescribes precise rules about how the mediation communications of the parties, non-party participants, and mediator may be used.  At its core, the act provides that each participant in a mediation proceeding is the holder of a privilege concerning his or her own mediation communications, and may prevent those communication from being disclosed or used in a subsequent formal proceeding.  The parties to a mediation hold the additional power to block the disclosure or use of any participant’s mediation communication.  There are of course exceptions to this broad rule.  There is no privilege for ongoing or future crimes, threats of bodily injury, evidence concerning the abuse or neglect where a protective services agency is a participant, and other circumstances.  Evidence that is otherwise admissible does not become inadmissible simply because it is referenced or repeated in a mediation communication.  The 2003 Amendment to the Uniform Mediation Act provides for adoption of the UNCITRAL Model Act on Commercial Conciliation by incorporating it by reference in the Uniform Mediation Act.  The Model Law was adopted by UNCITRAL in 2002, and provides for the appointment of conciliators (mediators) and the conduct of a conciliation between international commercial disputants.  Conciliation and mediation are virtually synonymous for the purposes of these acts.

Questions about UMA? 

For further information contact the following persons:

Michael B. Getty, Chair of the UMA drafting committee:  mbgetty@aol.com

Nancy Rogers, Reporter for the UMA drafting committee:  rogers.23@osu.edu

John M. McCabe, NCCUSL Legislative Director:  312-915-0195, john.mccabe@nccusl.org 

Notes about NCCUSL Acts:

For information on the specific drafting rules used by NCCUSL, the Conference Procedural and Drafting Manual is available online at www.nccusl.org.

Because these are uniform acts, it is important to keep the numbering sequence intact while drafting.

In general, the use of bracketed language in NCCUSL acts indicates that a choice must be made between alternate bracketed language, or that specific language must be inserted into the empty brackets.  For example:  “An athlete agent who violates Section 14 is guilty of a [misdemeanor] [felony] and, upon conviction, is punishable by [      ].

A word, number, or phrase, or even an entire section, may be placed in brackets to indicate that the bracketed language is suggested but may be changed to conform to state usage or requirements, or to indicate that the entire section is optional.   For example:  “An applicant for registration shall submit an application for registration to the [Secretary of State] in a form prescribed by the [Secretary of State].  [An application filed under this section is a public record.]  The application must be in the name of an individual, and, except as otherwise provided in subsection (b), signed or otherwise authenticated by the applicant under penalty of perjury.”

The sponsor may need to be consulted when dealing with bracketed language.

UNIFORM MEDIATION ACT

            SECTION 1.  TITLE.  This [Act] may be cited as the Uniform Mediation Act.

            SECTION 2.  DEFINITIONS.  In this [Act]:

                        (1)  “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

                        (2)  “Mediation communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

                        (3)  “Mediator” means an individual who conducts a mediation.

                        (4)  “Nonparty participant” means a person, other than a party or mediator, that participates in a mediation.

                        (5)  “Mediation party” means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.

                        (6)  “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.

                        (7)  “Proceeding” means:

                                    (A) a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery; or

                                    (B) a legislative hearing or similar process.

                        (8)  “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.

                        (9)  “Sign” means:

                                    (A) to execute or adopt a tangible symbol with the present intent to authenticate a record; or

                                    (B) to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.

            SECTION 3.  SCOPE.

                        (a)  Except as otherwise provided in subsection (b) or (c), this [Act] applies to a mediation in which:

                                    (1) the mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator;

                                    (2) the mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or

                                    (3) the mediation parties use as a mediator an individual who holds himself or herself out as a mediator or the mediation is provided by a person that holds itself out as providing mediation.

                        (b)  The [Act] does not apply to a mediation:

                                    (1) relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;

                                    (2) relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that the [Act] applies to a mediation arising out of a dispute that has been filed with an administrative agency or court;

                                    (3) conducted by a judge who might make a ruling on the case; or

                                    (4) conducted under the auspices of:

                                                (A) a primary or secondary school if all the parties are students or

                                                (B) a correctional institution for youths if all the parties are residents of that institution.

                        (c) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement by the parties, that all or part of a mediation is not privileged, the privileges under Sections 4 through 6 do not apply to the mediation or part agreed upon.  However, Sections 4 through 6 apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made.

Legislative Note: To the extent that the Act applies to mediations conducted under the authority of a State’s courts, State judiciaries should consider enacting conforming court rules.

            SECTION 4.  PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY.

                        (a)  Except as otherwise provided in Section 6, a  mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5.

                        (b)  In a proceeding, the following privileges apply:

                                    (1)  A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

                                    (2)  A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

                                    (3)  A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

                        (c)  Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

Legislative Note:  The Act does not supersede existing state statutes that make mediators incompetent to testify, or that provide for costs and attorney fees to mediators who are wrongfully subpoenaed.  See, e.g., Cal. Evid. Code Section 703.5 (West 1994).

            SECTION 5.  WAIVER AND PRECLUSION OF PRIVILEGE.

                  (a)  A privilege under Section 4 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:

                        (1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and

                        (2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

                  (b)  A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under Section 4, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

                  (c)  A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under Section 4.

            SECTION 6.  EXCEPTIONS TO PRIVILEGE.

                  (a)  There is no privilege under Section 4 for a mediation communication that is:

                        (1) in an agreement evidenced by a record signed by all parties to the agreement;

                        (2) available to the public under [insert statutory reference to open records act] or made during a session of a mediation which is open, or is required by law to be open, to the public;

                        (3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

                        (4) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

                        (5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; 

                        (6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or

                        (7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the

                                    [Alternative A: [State to insert, for example, child or adult protection] case is referred by a court to mediation and a public agency participates.]

                                    [Alternative B: public agency participates in the [State to insert, for example, child or adult protection] mediation].

                  (b)  There is no privilege under Section 4 if a court, administrative agency, or arbitrator 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 interest in protecting confidentiality, and that the mediation communication is sought or offered in:

                        (1) a court proceeding involving a felony [or misdemeanor]; or

                        (2) except as otherwise provided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.

            (c)  A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

            (d)  If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted.  Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

Legislative Note:  If the enacting state does not have an open records act, the following language in paragraph (2) of subsection (a) needs to be deleted:  “available to the public under [insert statutory reference to open records act] or".

SECTION 7.  PROHIBITED MEDIATOR REPORTS.

(a)  Except as required in subsection (b), a  mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation.

(b)  A mediator may disclose:

(1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;

(2) a mediation communication as permitted under Section 6; or

(3) a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment.

(c)  A communication made in violation of subsection (a) may not be considered by a court, administrative agency, or arbitrator.

SECTION 8.  CONFIDENTIALITY.  Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.

      SECTION 9.  MEDIATOR’S DISCLOSURE OF CONFLICTS OF INTEREST; BACKGROUND.

(a)  Before accepting a mediation, an individual who is requested to serve as a mediator shall:

(1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and

(2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation.

(b)  If a mediator learns any fact described in subsection (a)(1) after accepting a mediation, the mediator shall disclose it as soon as is practicable.

(c)  At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute.

(d)  A person that violates subsection [(a) or (b)][(a), (b), or (g)]  is precluded by the violation from asserting a privilege under Section 4.

      (e) Subsections (a), (b), [and] (c), [and] [(g)] do not apply to an individual acting as a judge.

(f)  This [Act] does not require that a mediator have a special qualification by background or profession.

[(g)  A mediator must be impartial, unless after disclosure of the facts required in subsections (a) and (b) to be disclosed, the parties agree otherwise.]

SECTION 10.  PARTICIPATION IN MEDIATION.  An attorney or other individual designated by a party may accompany the party to and participate in a mediation.  A waiver of participation given before the mediation may be rescinded.

SECTION 11.  INTERNATIONAL COMMERCIAL MEDIATION.  

      (a)  In this section, “Model Law” means the Model Law on International Commercial Conciliation adopted by the United Nations Commission on International Trade Law on 28 June 2002 and recommended by the United Nations General Assembly in a resolution (A/RES/57/18) dated 19 November 2002, and “international commercial mediation” means an international commercial conciliation as defined in Article 1 of the Model Law.

      (b)  Except as otherwise provided in subsections (c) and (d), if a mediation is an international commercial mediation, the mediation is governed by the Model Law.

      (c)  Unless the parties agree in accordance with Section 3(c) of this [Act] that all or part of an international commercial mediation is not privileged, Sections 4, 5, and 6 and any applicable definitions in Section 2 of this [Act] also apply to the mediation and nothing in Article 10 of the Model Law derogates from Sections 4, 5, and 6. 

      (d)  If the parties to an international commercial mediation agree under Article 1, subsection (7), of  the Model Law that the Model Law does not apply, this [Act] applies.

Legislative Note.  The UNCITRAL Model Law on International Commercial Conciliation may be found at www.uncitral.org/en-index.htm.  Important comments on interpretation are included in the Draft Guide to Enactment and Use of UNCITRAL Model Law on International Commercial Conciliation.  The States should note the Draft Guide in a Legislative Note to the Act.  This is especially important with respect to interpretation of Article 9 of the Model Law.

            SECTION 12.  RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.  This [Act] modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but this [Act] does not modify, limit, or supersede Section 101(c) of that Act or authorize electronic delivery of any of the notices described in Section 103(b) of that Act.

            SECTION 13.  UNIFORMITY OF APPLICATION AND CONSTRUCTION.  In applying and construing this [Act], consideration should be given to the need to promote uniformity of the law with respect to its subject matter among States that enact it.

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:

(1)

(2)

(3)

            SECTION 17.  APPLICATION TO EXISTING AGREEMENTS OR REFERRALS.

(a)  This [Act] governs a mediation pursuant to a referral or an agreement to mediate made on or after [the effective date of this [Act]].

(b)  On or after [a delayed date], this [Act] governs an agreement to mediate whenever made.

APPENDIX A

(Model Law as adopted by the United Nations Commission on International Trade Law -- UNCITRAL  at its 35^th session in New York on 28 June 2002 and approved by the United Nations General Assembly on November 19, 2002)

UNCITRAL Model Law on International Commercial Conciliation

Article 1. Scope of application and definitions

(1)  This Law applies to international[1] commercial[2] conciliation.

         (2)  For the purposes of this Law, “conciliator” means a sole conciliator or two or more conciliators, as the case may be.

         (3)  For the purposes of this Law, “conciliation” means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.

         (4)  A conciliation is international if:

                (a)    The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or

                (b)    The State in which the parties have their places of business is different from either:

                        (i)     The State in which a substantial part of the obligations of the commercial relationship is to be performed; or

                        (ii)    The State with which the subject matter of the dispute is most closely connected.

        (5)  For the purposes of this article:

                (a)    If a party has more than one place of business, the place of business is that which has the closest relationship to the agreement to conciliate;

                (b)    If a party does not have a place of business, reference is to be made to the party’s habitual residence.

        (6)    This Law also applies to a commercial conciliation when the parties agree that the conciliation is international or agree to the applicability of this Law.

        (7)    The parties are free to agree to exclude the applicability of this Law.

        (8)    Subject to the provisions of paragraph (9) of this article, this Law applies irrespective of the basis upon which the conciliation is carried out, including agreement between the parties whether reached before or after a dispute has arisen, an obligation established by law, or a direction or suggestion of a court, arbitral tribunal or competent governmental entity.

        (9)    This Law does not apply to:

                (a)    Cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement; and

                (b)    […].

         Article 2. Interpretation

        (1)   In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

        (2)   Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.

        Article 3. Variation by agreement

        Except for the provisions of article 2 and article 6, paragraph (3), the parties may agree to exclude or vary any of the provisions of this Law.

        Article 4. Commencement of conciliation proceedings[3]

        (1)   Conciliation proceedings in respect of a dispute that has arisen commence on the day on which the parties to that dispute agree to engage in conciliation proceedings.

        (2)   If a party that invited another party to conciliate does not receive an acceptance of the invitation within thirty days from the day on which the invitation was sent, or within such other period of time as specified in the invitation, the party may elect to treat this as a rejection of the invitation to conciliate.

        Article 5. Number and appointment of conciliators

        (1)   There shall be one conciliator, unless the parties agree that there shall be two or more conciliators.

        (2)   The parties shall endeavour to reach agreement on a conciliator or conciliators, unless a different procedure for their appointment has been agreed upon.

        (3)   Parties may seek the assistance of an institution or person in connection with the appointment of conciliators. In particular:

                (a)    A party may request such an institution or person to recommend suitable persons to act as conciliator; or

                (b)    The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person.

        (4)   In recommending or appointing individuals to act as conciliator, the institution or person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and, where appropriate, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.

        (5)   When a person is approached in connection with his or her possible appointment as conciliator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. A conciliator, from the time of his or her appointment and throughout the conciliation proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him or her.

         Article 6. Conduct of conciliation

        (1)   The parties are free to agree, by reference to a set of rules or otherwise, on the manner in which the conciliation is to be conducted.

        (2)   Failing agreement on the manner in which the conciliation is to be conducted, the conciliator may conduct the conciliation proceedings in such a manner as the conciliator considers appropriate, taking into account the circumstances of the case, any wishes that the parties may express and the need for a speedy settlement of the dispute.

        (3)   In any case, in conducting the proceedings, the conciliator shall seek to maintain fair treatment of the parties and, in so doing, shall take into account the circumstances of the case.

        (4)   The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute.

         Article 7. Communication between conciliator and parties

        The conciliator may meet or communicate with the parties together or with each of them separately.

        Article 8. Disclosure of information

        When the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the conciliation.

         Article 9. Confidentiality

        Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.

         Article 10. Admissibility of evidence in other proceedings

        (1)   A party to the conciliation proceedings, the conciliator and any third person, including those involved in the administration of the conciliation proceedings, shall not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding any of the following:

                (a)    An invitation by a party to engage in conciliation proceedings or the fact that a party was willing to participate in conciliation proceedings;

                (b)    Views expressed or suggestions made by a party in the conciliation in respect of a possible settlement of the dispute;

                (c)    Statements or admissions made by a party in the course of the conciliation proceedings;

                (d)   Proposals made by the conciliator;

                (e)    The fact that a party had indicated its willingness to accept a proposal for settlement made by the conciliator;

                (f)    A document prepared solely for purposes of the conciliation proceedings.

        (2)   Paragraph (1) of this article applies irrespective of the form of the information or evidence referred to therein.

        (3)   The disclosure of the information referred to in paragraph (1) of this article shall not be ordered by an arbitral tribunal, court or other competent governmental authority and, if such information is offered as evidence in contravention of paragraph (1) of this article, that evidence shall be treated as inadmissible. Nevertheless, such information may be disclosed or admitted in evidence to the extent required under the law or for the purposes of implementation or enforcement of a settlement agreement.

        (4)   The provisions of paragraphs (1), (2) and (3) of this article apply whether or not the arbitral, judicial or similar proceedings relate to the dispute that is or was the subject matter of the conciliation proceedings.

        (5)   Subject to the limitations of paragraph (1) of this article, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a conciliation.

         Article 11. Termination of conciliation proceedings

        The conciliation proceedings are terminated:

        (a)    By the conclusion of a settlement agreement by the parties, on the date of the agreement;

        (b)   By a declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration;

        (c)    By a declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or

        (d)   By a declaration of a party to the other party or parties and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

        Article 12. Conciliator acting as arbitrator

        Unless otherwise agreed by the parties, the conciliator shall not act as an arbitrator in respect of a dispute that was or is the subject of the conciliation proceedings or in respect of another dispute that has arisen from the same contract or legal relationship or any related contract or legal relationship.

         Article 13. Resort to arbitral or judicial proceedings

         Where the parties have agreed to conciliate and have expressly undertaken not to initiate during a specified period of time or until a specified event has occurred arbitral or judicial proceedings with respect to an existing or future dispute, such an undertaking shall be given effect by the arbitral tribunal or the court until the terms of the undertaking have been complied with, except to the extent necessary for a party, in its opinion, to preserve its rights. Initiation of such proceedings is not of itself to be regarded as a waiver of the agreement to conciliate or as a termination of the conciliation proceedings.

         Article 14. Enforceability of settlement agreement[4]

        If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable ... [the enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement].