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Mediate.com

The Uniform Mediation Act: Talking Points

by Robert Creo
October 2001 Robert Creo
POSITIVE OR CLARIFYING FEATURES COMPARED TO EXISTING LAW

1) Section 8. Confidentiality

This provision does not generally exist as a provision and/or concept separate and apart from privilege in most jurisdictions. The drafting of this provision in the UMA extends confidentiality beyond privilege and inadmissibility/evidence considerations to provide parties full range to protect communication which arise in the context of mediation. It legitimizes contracts providing for full non-disclosure of anything which occurs in the mediation context. The provision provides express legal protection for contract terms and conditions which prohibit participants, including the mediator, from disseminating information to the media, other counsel in other cases or the via the internet. My own strong belief as a mediator is to provide maximum protection and comfort to encourage candid disclosures and exchange of proposals. There is a great chilling effect on candor if parties believe information or bargaining positions can be communicated to non-participants as long as it is not in an evidentiary manner. For example, absence a contractual provision to the contrary, lawyers could post on the internet the entire recital of offers and counter-offers on a claim in the event of impasse; this provides significant insight for counsel in other pending claims against one of the parties and a potential dossier of counsel themselves. My own Agreement to Mediate provides for expansive confidentiality far beyond evidentiary considerations in subsequent legal proceedings.

2) Non-Party Participants

The UMA expressly extends protection to individuals participating in the process or are not disputants nor representatives of the parties. This confirms a safe-harbor for friends of disputants and other "outsiders" such as financial advisors or technical experts.

3) Section 6. Exceptions to Privilege

a) In Section 6(a) the UMA expressly provides for exceptions to process professional misconduct or malpractice claims arising from conduct occurring during a mediation. It seems obvious to that the common law or statutory interpretation would create an exception for claims involving the mediator as a party. The more troublesome aspect has been when claims are filed against representatives of the parties; mediators have struggled with this problem, especially in the context of frivolous claims against counsel by a former client attempting to evade a fee to that lawyer or overturn a settlement agreement obtained at mediation. The UMA brilliantly strikes the appropriate balance by indicating creating an absolute exception for the parties but a "permissive" for the mediator controlled by the mediator. In Section 6(c) it allows the decision to be made solely by the mediator by stating "A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(b) or (b)(2)."

b) Section (b)(2) addresses the equally troublesome situation where one of the parties is seeking to repudiate or otherwise void a term or condition of a settlement obtained at mediation. The UMA final draft wisely defers this choice to the mediator. c) Section 6(c), although cumbersome in its drafting approach, NCCUSL wisely creates discretion to allow the mediator to handle these difficult situations on an ad hoc basis. d) With the exception of 6(b)(1) creating exceptions for criminal proceedings, the remainder of the exceptions of Section 6 are consistent with the law in the overwhelming majority of jurisdictions with existing privilege statutes or rules.

4) SECTION 2. DEFINITIONS and SECTION 3. SCOPE

Except for Section 2(2) "mediation communication" the definition and scope sections are good. Section 2 does not attempt to define every term or dynamic which may be involved in mediation. The common law or statutory construction principles can adequately fill any gaps on a case-by-case basis.

5) SECTION 4. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY.

This Section is clear and broad enough to serve the purpose of the Act. It makes it clear that the privilege extends to discovery and not just evidentiary hearings or proceedings.

6) SECTION 5. WAIVER AND PRECLUSION OF PRIVILEGE

This Section clarifies or confirms the concept that the mediator has a stake in privilege and protection of confidentiality of the process which exists independently of the disputants. Mediation is a tri-lateral, and not a bi-lateral, negotiation process. Parties may waive the privilege independently of the mediator. Section 5(a)(1) for a mediator to testify that "in the case of the privilege of a mediator, it is expressly waived by the mediator" so that the parties are unable to compel testimony of the mediator over the mediator's objection. Section 5(2) afford similar protections to the nonparty participant. These express limitations may be an improvement on state statutes in a number of jurisdictions.

7) SECTION 7. PROHIBITED MEDIATOR REPORTS

Although I do not think this section is necessary in many jurisdictions, it does make it clear that judges are not part of the mediation process. Section (c) proscribes using communications made in violation of the provision. It is, however, unclear how this violation would be addressed in a particular case, especially if it is the type of information that is difficult to ignore despite instructions to "disregard" the communication. One party may nevertheless perceive that the "court, administrative agency, or arbitrator" was prejudice or otherwise tainted by the communication.

NEGATIVE DEVELOPMENTS OR LIMITATIONS OF THE UMA

If the UMA stopped with Section 8, Confidentiality being the last substantive provision, then one might readily conclude that on balance of the UMA it is an attractive piece of legislation. The two main areas of criticism would have been limited to the definition of "mediation communication" and the exception for criminal proceedings. The UMA, however, does take a position on these two points which is consistent with the majority of statutes and court rules currently in place. Although the ethical and disclosure issues are appropriate areas for consideration it is wrong to include them in a statute focusing on privilege. Lawyers have been trained to read legislation and exploit any potential ambiguity ("loophole") to the perceived benefit of their client. (Please note a 10/19/01 Report in American Arbitration Association adrworld.com online publication that in Virginia the "intake" procedures of mediation were not expressly protected so an amendment is being proposed because "attorneys seeking information and communications made during mediation intake procedures recently have subpoenaed 'a lot of receptionists' and other administrative personnel.")

8) SECTION 9. MEDIATOR'S DISCLOSURE OF CONFLICTS OF INTEREST; BACKGROUND

Section 9(d) is at the root of the problem and creates the opportunity for tremendous mischief while adding nothing substantively to the UMA nor to the promotion of mediation as an annex to the court system or as a true alternative to litigation. It states:

Section (d) A person that violates subsection (a), (b), or (c) is precluded by the violation from asserting a privilege under Section 4. (Section 4. Privilege Against Disclosure; Admissibility; Discovery) The effect of this provision is to create uncertainty during and after the mediation process about what communications, if any, may be subsequently challenged. The chilling effect on communications made to the mediator and on the weakening of protection for a candid exchange of information is devastating. The participants, and the mediator in particular, are held to a standard which often is difficult to apply in practice and hence become vague and arbitrary. The irony is that the brunt of the negative effect is on a party or non-party participant who had the reasonable expectation of confidentiality of the process and later finds that the mediator will be compelled to testify regarding information disclosed under the promise of protection. Section (d) provides a vehicle for counsel to engage in wide-ranging discovery on the caucus portion of the mediation process. It makes no practical sense to tie violation of an ethical rule by a non-party mediator to voiding an evidentiary privilege in civil litigation between the parties. Parties are placed in economic jeopardy in litigation by actors and actions totally beyond their control or comprehension.

If counsel either believes or is seeking a way to obtain an advantage over an adversary, or just does not want to pay the mediator's fee, then Section (d) throws the door wide open. The ability of a party and the mediator to assert the privilege is gone if non-disclosure is violated. The disclosure provisions appear appropriate at first blush and are in fact consistent with other codes of conduct or ethical guidelines for mediators.

The criticism is not the substance of the disclosure provisions since mediators should, and in fact usually do, make disclosures consistent with the intent and language of the UMA. Failure to make an appropriate disclosure should not, however, have the ultimate effect of CHANGING what evidence will be sought in discovery or utilized at trial. The validity of the mediation process depends upon the fundamental assumption by the parties that mediation does not "create" new evidence nor preclude use of otherwise existing or discoverable evidence. Section 4(c) expressly codifies this fundamental foundation of mediation, yet Section 9(d) wipes it out. The clear reading of these two provisions is that evidence which would otherwise be inadmissible (offers of compromise; hearsay; opinion of mediator on credibility of witness) now in fact may become admissible! A powerful argument can be made by opposing counsel that disclosures/statements (i.e, admissions against interest) made in private caucus are admissible; they have not only probative value but are very reliable since they were communicated in the context of mediation when the disputant had full expectation of their confidentiality and the process itself emphasized the importance of candor.

The problem is in the practical application of the disclosure provisions. The two key obligations of the mediator is stated as follows:

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

Failure to make an inquiry to discover and/or disclose "known facts" or "qualifications" void the evidentiary privilege in all subsequent proceedings but not any contractual obligations of confidentiality. (Section 8. Confidentiality)

Before addressing the "mechanics" of how a violation is determined, it is very difficult to determine in the "hard" case (which make bad law) what is required for disclosure. Consider the following questions on disclosure of "the mediator's qualifications" which are mandatory to disclose or the privilege is lost:

1) Educational credentials? (all schools attended, even high school? class ranks?)
2) Mediator training programs? (Specific dates and locations? Sponsoring organizations?
Instructors?) 3) participation in conferences and seminars?
4) Memberships and positions held in organizations (all professional societies? civic and/or religious organizations?)
5) Publications? (on mediation only? ADR? law? op-ed pieces?)
6) Volunteer work in any conflict related matter or only compensated time?
7) Number of cases mediated, including settlement rates? (I do not keep this statistic.)
8) Amount in controversy in mediated cases? Types of disputes?
9) Style of mediation? (transformative, facilitative, directive, evaluative, transparent, narrative)
10) Number of cases litigated before a judge, jury or as an arbitrator? Outcome of those cases?
11) Professional and/or civic awards?
Soft qualifications/skills or lack thereof
12) Persistence
13) Emphathy
14) Compassion
15) Physical or mental strength; endurance
16) Commitment
17) Sense of humor; warm smile; smiling eyes
18) Being articulate
19) Being perceptive
20) Impartiality/Neutrality
21) Lack of own values, beliefs or opinions (impartiality; neutrality?)
22) Ability to do reality checks for disputants
23) Inability to do reality checks for disputants
24) Ability to address power imbalances and "level playing field"
25) Inability to address power imbalances and "level playing field"
26) Refusal to address proper imbalances and "level playing field" dynamics
27) WRITE IN YOUR OWN

Do you think that everyone who read the above list and mentally answered the questions came to the same conclusion that you did when you read it?

Perhaps the drafters answer lies in Section 9(f) which states:

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

So, it does not matter what, if anything, is disclosed in Section 9(c) since it is avoided by application of Section 9(f) since nothing is actually required. If this is true, why bother with the inclusion of Section (c) and why apply the voiding of the privilege to Section (c)?

The mediation community has been struggling with qualifications to determine who is an appropriate "individual who conducts a mediation" for over twenty years. No consensus has occurred. For a UMA to tackle this critical issue with a broadbrush and tie it to the voiding of privilege is irresponsible. There is not even a qualification of "reasonableness" or otherwise any modifying language.

Section 9(a) disclosure

Consider the following questions on disclosure of "known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including . . . an existing or past relationship" which are mandatory to disclose or the privilege is lost:

Disclosure Questions

1) Exact number of times served as a served as a mediator or arbitrator for counsel in any matter?
2) Serving as co-counsel with any of the representatives of the parties in unrelated matters?
3) Serving as opposing counsel or as a neutral in unrelated matters?
4) Demographics, such as ethnic or religious identification with participants?
5) Served as a party-appointed arbitrator in unrelated matters for counsel or party?
6) Settlement rates or outcome of unrelated cases where served as a neutral?
7) Demographics of disputants in unrelated cases?
8) Referral history between mediator and counsel in unrelated matters?
9) Number of cases served as neutral in past involving same insurance carrier?
10) Amount of fees generated from serving in past as mediator for participants?
11) If a former judge, number of cases adjudicated involving counsel or disputants?
12) If a former elected official or a judge in jurisdiction which elects judges, amount of any campaign contributions to judicial election campaigns?
13) Membership in professional, civic, religious or political organizations?
14) Status of any potential or pending unrelated matter between mediator and any participant?
15) Attendance at professional conferences or events with any participant?
16) Ownership of stocks, bonds, certificates in company of disputants?
17) Ownership of mutual funds which hold stock of disputant?
18) Family (parents, children, siblings, cousins) ownership of stock or mutual funds?
19) Policyholder relationship with insurers or other financial institutions related to disputants?
20) Former classmates, co-workers, student-teacher relationships?
21) Imputation rules to law firm, ADR provider organization or employer?
22) WRITE IN YOUR OWN

Do you think that everyone who read the above list and mentally answered the questions came to the same conclusion that you did when you read it?

HOW IS A SECTION 9 VIOLATION TO BE FOUND?

Assuming arguendo, that the content and intent of Sections (a),(b) and (c) are accepted as valid and beneficial. How is it determined when "a person [that] violates subsection (a), (b), or (c)?

Think of the following, in no particular order.
1) During a trial itself, with the mediator being listed as a potential witness and subpoenaed to court?
2) Via pre-trial motions before an assigned trial judge or rotating motion judge?
3) By joint declaration of all parties, other than the mediator, to an agreement to mediate?
4) In a separate judicial action (the right created by the UMA) on the issue?
5) Based upon a writ of summons to initiate an action naming a mediator as defendant so that discovery can be conducted to determine what happened at the caucus?
6) By deposing the mediator and/or staff n in the underlying action?
7) Are mediators now required to keep any of their own notes to prove or disprove matters involving mediation sessions?
8) Are staff and other intake personnel subject to discovery depositions or testifying?
9) May ADR vendors, observers or experts attending be deposed or called to testify to collaborate or impeach the testimony of the mediator should a violation be found and the privilege be unavailable?

Do you think that everyone who read the above list and mentally answered the questions came to the same conclusion that you did when you read it?

CONCLUSION FOR SECTION 9.

Legislation is to create more certainty and not vast uncertainty. Section 9 of the UMA is unacceptable and should be vigorously opposed.

SECTION 2. DEFINITIONS

It is not clear that the definition of mediation communication is broad enough to encompass conduct not intended as a 'statement" or involves the demeanor, reactions or other nonverbal actions of participants. If a matter is outside the definition of a "mediation communication" then it is not privileged or protected. The following are only a few of the examples which do are not obviously within the definition or scope of the UMA:

1) Scars or other physical attributes of participants.
2) Blinking or nervous reaction of the eyes during the joint session or in caucus.
3) Coughing or other physical action.
4) Blushing/face red when a proposal or other statement was made by opposing counsel.
5) Limping or other physical activities.
6) Ability or inability to speak or understand a language?
7) What people ate at the mediation. If they smoked.

All of the above have been commented on to me by counsel in cases where I have served as a mediator. It would appear under the UMA that I could be called into trial to testify concerning my observations to all or some of these events since they are conduct which may not fall within the definition of a "statement" as required by the UMA.

SECTION 6 (b)(1) Criminal proceeding exception

There is a split among jurisdictions now with some providing protection to all legal proceedings and others only in non-criminal actions. At the full NCCUSL reading, the drafters created an option for misdemeanor proceedings. This is a low bar to satisfy since many activities subject to mediation can tangentially involve matters which could be subject to criminal indictment. For example, in domestic relations cases, personal injury claims and small businesses, there may be issues involving the proper reporting of tax obligations. There may also be whole classes of cases excluded from being mediated in community and other interpersonal conflict areas which may involve past violence or threats of violence. This may eliminate mediation involving gangs or have a chilling effect on other programs or initiatives.

Mediation is best promoted by broad confidentiality and the concept of utilizing mediation as an ALTERNATIVE process to traditional means may be critical in some applications or communities.

SECTION 10. PARTICIPATION IN MEDIATION.

This provision is unnecessary and adds nothing of substance to the concept or application of privilege. It undermines the concept of empowerment of disputants themselves which is a theoretical underpinning of many mediation systems.

Biography


Robert A. Creo received his B.A. in 1974 from Brandeis University and received his J.D. in 1977 from Washington University School of Law. Mr. Creo is a mediator, arbitrator and educator. He has been an Adjunct Professor at Duquesne University School of Law since 1991.

Mr. Creo has arbitrated or mediated over 2,000 cases since 1979, including numerous serious injury/death claims, complex business transactions and cases involving multimillion dollar settlements. Mr. Creo has been retained to serve as settlement counsel by law firms to negotiate complex and/or large claims on their behalf. For many years, he had served as a neutral for professional football, baseball and the United States Senate.

Mr. Creo has published extensively and is active as an educator on ADR, including providing advanced mediator training throughout North America and Europe. He belongs to numerous professional organizations including having served as the first President of the International Academy of Mediators (IAM).



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Website: www.rcreo.com

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