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"We are gathered here today to join these two parties in holy matrimony. If anyone here objects to this union, speak now, or forever hold your peace."
As we turn the century clock ahead, lawyers stand witness to a unique marriage, one in which the knot has been tied between the private non-adversarial system of mediation and the public, adversarial process known as the Civil Justice System. The Civil Justice System had the mediation community gnawing at its bedside since the door was opened to this innovative approach to resolving disputes at the Roscoe Pound Conference in 1976. Throughout the years, many different attempts have been made to integrate mediation into the court system. Generally speaking, the effort has been more regional and statewide (Texas, Minnesota and Florida) until now.
You can always tell when something new becomes institutionalized -- people try to make rules and regulations about it. That is exactly what the American Bar Association ("ABA") is doing in the mediation world. Currently the ABA is pondering what they affectionately call the Uniform Mediation Act ("UMA"). Through a generous grant from the Hewlett Foundation (i.e. computers and laser printers), the ABA has assembled legal scholars from throughout the country to nationalize the rules and regulations concerning mediation as they impact our litigation system.
BACKGROUND OF THE UMA
The primary intent of the drafters of the UMA is to fulfill the fundamental obligation of the law to assure that the reasonable expectations of mediation participants regarding confidentiality of the process are met. The UMA further intends to promote the integrity of the mediation by encouraging disclosure of known conflicts of interests as well as to answer honestly about the mediator's qualifications.
Currently the UMA is divided into five sections: 1) Definitions; 2) Confidentiality; 3)What's Prohibited From Disclosure?; 4) Liability; 5) Enforcement of Agreements to Mediate.
By way of history, the institutionalization of mediation and the "marriage" of these strange bedfellows began in 1976 at the Roscoe Pound Conference. At that time, Attorney General Ramsey Clark, began an experiment known as the "Neighborhood Justice Centers." At the same time, Harvard Law School Professor Frank Sander came up with the idea of a multi-door courthouse approach for resolving disputes. These experiments planted the idea of mediation into the mind sets of litigators to the point that in the early 1980s, judges would retire from the bench but hear cases privately for a fee.
The universal acceptance of retired judges as settlement referees or mediators led to the second phase in which research and development occurred in the field. To that end, studies on various styles and techniques used by mediators coupled with the introduction of private lawyers and non-lawyers serving in a neutral capacity gained acceptance. Several states, including Texas, Minnesota and Florida, introduced legislation mandating civil mediation before any case went to jury trial. After almost thirteen years of living with these mandatory mediation rules, many other states have introduced some form of ADR into their court rules and judicial system. This has all led up to the decision to create a Uniform Mediation Act which represents the intersection of thought between legal theorists, law school professors, litigators and neutrals serving as mediators.
CONTROVERSIES ARE BREWING
The UMA is controversial in many ways, not the least of which is in its determination to create an evidentiary privilege for confidential communications that occur in a mediation. This is distinguished from the California Evidence Code 1119 categorical exception model which prevents any and all communications that occur in a mediation from being disclosed in a court or discovery proceeding. Under the UMA, a party or mediator must request that the communication not be disclosed in a further proceeding, which is the philosophy behind most privilege statutes. In California, no such request is necessary. It is automatically excluded. Consider the practical problems which occur under the UMA privilege:
Imagine a situation in a sexual harassment case in which the perpetrator apologizes during the session. Ultimately the case does not settle because the parties disagree as to the value of the case. During discovery, the plaintiff's counsel seeks admissions that the perpetrator acknowledged his liability during the mediation. The perpetrator either denies the request or refuses to respond. A motion to compel is filed along with several declarations outlining the admissions that occurred during the mediation. Under California law, the declarations would be inadmissible, and the statements of anything said by the perpetrator would be inadmissible. Under the UMA it is very possible that it would be entered into the court record since the party could be waiving the privilege.
Some scholars have argued that the California general evidentiary exclusion and discovery limitation on communications is too simple and subject to abuse. They cite to three recent appellate decisions which did not preclude mediator testimony and mediation communications as contemplated by Evidence Code 1119 (See: Rinaker v. Superior Court, 62 Cal App. 4th 155, (1998); Olam v. Congress Mortgage 68 F.Supp.2d 1110( 1999); Foxgate Homeowners Association v. Bramalea California, Inc., 2000 WL 218353 (Cal. App. 2 Dist (2000) - accepted for review by California Supreme Court).
In support of the argument against the California approach, the UMA drafting committee point out that the categorical exclusion of relevant evidence is uncommon for professional relationships and has been limited to public policy situations such as subsequent remedial repairs and payment of medical expenses. The law in such circumstances has found that unfair prejudice substantially outweighs the probative value of the evidence. The drafters go on to state that the same balancing would apply to the California approach, namely, that a court would need to balance the need to admit relevant evidence against the public policy benefit of protecting mediation confidentiality.
There are many more issues related to the privilege v. exception approach and it is widely accepted that the UMA drafting committee will attempt to harmonize the two approaches into a framework that is acceptable in California.
OTHER ISSUES TO CONSIDER
As the first year of this marriage begins to take shape, other issues in addition to the privilege are beginning to unfold:
1) Should a party be able to throw out a mediation agreement because the party feels that there was more money available, i.e., the mediator defrauded the party?
How often has a lawyer walked away from a mediation wondering if s/he left money on the table. Under the UMA, those previous sleepless nights might well turn into a full blown investigation into the mediator's behavior. I recall one story in which a party observed the mediator (a former judicial officer) walking out of the mediation session after settlement had been reached with his arm around the attorney for his opponent. It was later learned that the attorney had many other cases with this retired judicial officer which were not disclosed before the mediation took place. Seller's remorse starts to sink in a motion is made to abandon the settlement agreement.
2) Should contract defenses be available?
Using an extreme example, imagine that you enter into a settlement agreement n which your principal pays large dollars during a mediation and learn the next week that the California Supreme court has issued an opinion directly in your favor. Had you know the opinion was about to be issued you might have entered into a conditional settlement or even delayed the mediation. Under the UMA, you might be able to allege a mutual mistake of fact as a defense to enforcement of the settlement agreement.
3) Should there be a disclosure of a previous relationship between the mediator and the parties?
The debate is widespread on how much should be disclosed between the mediator and the parties. Does rubbing elbows with someone at a bar association dinner require disclosure? How about the fact that the mediator grew up in the same neighborhood as one of the litigants? Or even more extreme, the mediator has stock in the defendant?
Under the rules of arbitration, CCP 1289 requires disclosure of past cases, awards, names of parties, etc. This type of rule levels the playing field so unprincipled arbitrators cannot favor one side over the other. Since mediators don't make decisions, should there be similar disclosure requirements? After all, mediators have far less power than arbitrators.
4) Should judges allow testimony in a court case based on what happened in the mediation?
Some mediation purists argue that this would have a chilling effect on how candid a person is willing to be in a mediation, and would eventually lead to resistance to using mediation as a method of dispute resolution. Others such as Federal Magistrate Wayne Brazile in the Olam v. Congress Mortgage case used a balancing test to find that a mediator should testify in court. The basic questions considered were: 1) the importance of the values and interests if the mediator were compelled to testify; 2) the magnitude of the harm that compelling the testimony would cause to those values and interests; 3) the importance of the rights or interests which would be jeopardized if the mediator's testimony was not accessible in the specific proceedings in question; and 4) how much the testimony would contribute toward protecting those rights or advancing those interests.
5) Should there be an option "buy-in" to make the mediated agreement enforceable?
In the Olam case, the mediation had been conducted all day and into the late evening hours. The plaintiff complained that she was too tired to know what was going on and that she never got to talk to anyone about settlement, except to ask about the food in the mediation. Under these circumstances, should Ms. Olam had more time to "buy in" to the settlement? On the other hand, she was represented by counsel who explicitly confirmed the terms of the deal with her to which she acquiesced.
These are all issues that are being debated by the gatekeepers of the Uniform Mediation Act. The answers to these questions will frame the long-term prospects of this marriage.
The UMA is important not so much for its substance but for what it represents -- the idea that
mediation has become a sanctioned and respected tool of the courts and it's litigators. While there
continues to be challenges to the body of the UMA, the ultimate beneficiaries of these challenges
will be our clients, who now realize the tremendous value our system has provided them by licensing
this unity of mediation and the courts.
Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for eighteen years. Krivis is on the board of visitors of Pepperdine Law School and serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. Contact him at his website, www.firstmediation.com.
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