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Coming Soon To Your State? The Uniform Mediation Act

by Ron Kelly
Ron Kelly
The Uniform Mediation Act is now being introduced in state legislatures. In every state there are Uniform Law Commissioners, whose role is to work to replace their state's existing laws with the UMA. The goal is to get their legislature to adopt the UMA as the main body of law defining and governing mediation in their state. The Act was officially adopted by the full National Conference of Commissioners on Uniform State Laws at its August 2001 meeting in West Virginia. The American Bar Association House of Delegates then voted to endorse the Act at its February 2002 meeting, with only a handful of opposing votes. Introduction into each state's legislature will proceed on a schedule coordinated at least partially through the UMA's Enactment Coordinator, Stan Fisher.

Summary of Most Recent Changes.

The conference made several significant improvements from the previous draft. Participants are now entitled to receive actual notice if the confidentiality protections are waived before any session, the exception for judicial officers was narrowed to except only judges, and the requirement for disclosure of conflicts of interest was made a regular requirement of the Act (previously optional). Other changes include significantly revising the scope of which mediations the Act covers, revising the way the Act deals with the many mediators from backgrounds other than law, eliminating the section guiding courts on how the Act should be construed, and changing the way the Act deals with general confidentiality (as opposed to court privilege).

Act Intended to Strengthen Confidentiality.

The desirability of this Act has been hotly debated in a large number of states, especially those already having what they consider stronger protections. To clarify the intent of the Act, the ABA Section of Dispute Resolution sent out a description containing the statement that "The Act is crafted as a minimum level of protection in those states that have none and is not meant to replace stronger confidentiality protections already on the books." The Official Reporters for both the NCCUSL and ABA Drafting Committees, Nancy Rogers and Richard Reuben, confirmed that this statement accurately reflected their understandings as well.

Detailed State-By-State Analysis Needed.

A detailed reading and analysis of the Act is now needed in every state, to decide whether to support its adoption. As the UMA is introduced in each state, careful analysis will also be needed to decide exactly which sections of existing state law should be repealed and which kept (per UMA Section 15). The Reporter's Notes contain important Legislative Notes intended to guide legislators on certain important issues. For instance, one states "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)."

The Reporter's Notes are available at http://www.law.upenn.edu/bll/ulc/ulc_frame.htm. For an example of analysis comparing a state's current law with the UMA's provisions, please see the chart below.

Area of Significant Difference

Uniform Mediation Act

Current California Statutes

1. Structure of protection

Privilege (with 3 differing levels) UMA Section 4

Communications inadmissible Ev. C. 1119

Parties may assert full privilege, mediator may refuse to disclose communications and block own statements, others attending may only block own statements 4

All communications inadmissible unless all participants expressly agree otherwise 1122

2. Neutrality of mediator

Optional section requiring impartiality 9(g)

Must be neutral third party 1115(a)

3. Scope

Excludes labor/management, and peer mediation in schools and youth correctional institutions 3(b)

Covers labor/management and peer mediations 1117

4. Confidentiality opt-outs

Parties can opt to make any session on-the-record 3(c)

All participants must expressly agree to remove confidentiality 1122

5. No privilege or protection:

If knowingly use mediation for criminal act 5(c), 6(a)(4)

In later criminal process or trial 1119

For threats to inflict bodily injury 6(a)3

In later criminal process or trial

For evidence of abuse, neglect etc. in proceedings where child or adult protective agency is a party (except if agency was in the mediation) 6(a)(7)

In later criminal process or trial

In mediation sessions open to the public 6(a)2

Covers public sessions 1117

Claims of mediation professional misconduct against attorney, representative, expert, or mediator 6(a)(6)&(7)

Mediation communications inadmissible (no exception for malpractice claims)

6. After in camera hearing and necessity findings -- court, agency, etc. may admit evidence, compel testimony

In proceeding for enforcement or reform of settlement agreement 6(b)2

Mediation communications not admissible in later fights over settlement agreement 1123

In criminal proceedings 6(b)1

No protection in crimial proceedings 1119

7. Representation, support

Right to bring attorney, rape counselor, support 10

Silent (barred in Family Court "mediations")

8. Conflicts disclosure requirement

Disclosure of known conflicts 9

Silent

9. Mediator testimony

May testify, but may not be compelled in later settlement fights or professional misconduct claims 6(c)

Mediators not competent to testify in later civil proceedings except contempt 703.5

10. When mediation ends

Silent

Ends with settlement, written withdrawal, or ten days after last communication 1125

11. Wrongful subpoenas

Silent

Attorneys fees to mediator 1127

12. Wrongful references to mediation communications in later proceedings

Prejudiced person may respond 5(c)

Grounds for mistrial, vacateur of award 1128

13. General interstate uniformity

Would provide if many states adopt

California-specific

14. Predictability of legislative enactment and court interpretations

Uncertain legislative amendments and adoption

Courts required to try to follow decisions of all other state courts where UMA adopted, if enacted 12

Current sections 1115-1128 adopted unanimously by Calif. Legislature - upheld by unanimous Calif. Supreme Court (Foxgate)

Rough Summary of Differences Only - See full text © 2001-2002, Ron Kelly. (Permission granted to reprint in newsletters, online journals, etc.).

Biography


Mediating since 1970 and arbitrating since 1986, Ron has initiated and guided enactment of dozens of key sections of California law protecting the integrity of ADR. He's a founder of two of California's main ADR professional organizations. He's been honored with eight major awards for his pioneering work in building the field, including Peacemaker of the Year in California and Honored Instructor at Berkeley. As an arbitrator and mediator, Ron's helped thousands of lawyers, business professionals and government agencies settle their disputes quickly and fairly. Ron has trained thousands of lawyers, judges, government officials, and business professionals on four continents, and his training materials are licensed and used around the world in numerous languages. Judges in most Bay Area superior courts have chosen to enroll in his trainings. He regularly trains mediators and arbitrators through the Bar Association of San Francisco, other Bay Area bar associations, and through UC Berkeley's CLE program.



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Website: www.ronkelly.com

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