ACR Comments to UMA

Provided by The Association for Conflict Resolution.

July 24, 2001

This letter will serve as the Association for Conflict Resolution’s official response to the “Draft for Approval” Uniform Mediation Act (UMA) for the August 10 – 17, 2001 National Conference of Commissioners on Uniform State Laws (NCCUSL) annual meeting.

The Association for Conflict Resolution (ACR) is the nation’s largest conflict resolution membership organization. ACR represents over 7000 members from all facets of the mediation and ADR field including individual practitioners (mediators and arbitrators), mediation organizations, educators, and administrators.

We have reviewed the current draft of the UMA according to the eleven guiding principles previously adopted by ACR (provided to the UMA drafters previously by AFM, SPIDR and ACR and again with this letter). While ACR finds many
positive elements in the UMA, we still have several concerns with the current UMA draft. These objections remain largely the same as we articulated to you in our official response dated March 22, 2001. At this point, ACR would support the UMA, provided that the following concerns are satisfactorily addressed:

1. IMPARTIALITY – As we have maintained throughout the drafting process, the principle that the mediator is impartial, and that he or she must conduct the mediation in an unbiased manner, is paramount to the credibility, integrity, and effectiveness of the mediation process. This is the reason that most states that have enacted mediation statutes have included the concepts of impartiality and/or neutrality in their acts. In earlier versions of the UMA, the act contained the notion that the mediator must be an impartial individual. Over our objection, this was dropped from the UMA.

Page 1 of the UMA Reporter’s Notes states, “The primary focus of this Act is a limited one – to provide a privilege that assures confidentiality in legal proceedings. Because the privilege makes it more difficult to offer evidence to challenge the mediated settlement agreement, the drafters viewed the issue of confidentiality as tied to provisions that will help increase the likelihood that the process will be fair.” For this reason, the Reporters go on to state that, “The primary guarantees of fairness within mediation are integrity of the process and informed self-determination.” (page 12). We believe that providing that a mediator must be impartial best assures that the “integrity of the process” (one of the “primary guarantees” set out in the Reporter’s Notes to justify confidentiality) will be maintained.

If impartiality is omitted from the definition of “mediator”, or not otherwise assured in other definitions or sections of the UMA, ACR fears that:

a. Some state statutes may inadvertently provide for or allow the referral of cases to a mediator who is not impartial (one of the party’s attorneys, for example) since, in many states, the UMA will be inserted in a larger set of non-conflicting mediation statutory provisions. These other provisions currently address issues such as court referral to mediation, mediator immunity, etc., and were typically built upon existing statutory definitions of the mediator as being impartial or neutral.

b. Mediators might not feel as if they need to be impartial.

c. Parties might not understand that they have a right to an impartial mediator and impartial process.

Inclusion of impartiality in the definition of mediator helps to further the integrity of the process and to assure that all other provisions in the UMA build upon the obligation of the mediator to be impartial. Therefore, ACR strongly recommends that the following modification be made to the definition
of “mediator”:

Proposed Section 3(3) “Mediator” means an impartial individual, of any
profession or background, who conducts a mediation. (Requested modification underlined).

Additionally, to address the concern raised by some drafters about the potential loss of the confidentiality privilege by a party in mediation should a mediator later be determined by a court to have been partial, or to have failed to acted impartially, we recommend that the following subsection be added to the act:

Proposed
Section 5(d) The protections of this act shall continue to apply even if a
mediator is found to be partial or failed to act impartially.
(Revision
requested underlined)

This modification will help assure parties to a mediation that their expectations of confidentiality will not be jeopardized by the actions or inaction (such as nondisclosure of conflicts) by the mediator.

We are aware that a concern has been raised that including impartiality in the definition will create potential liability for mediators. However, in states where such provisions exist this does not appear to be the case. In addition, we believe this concern can be adequately addressed by mediators providing appropriate conflict of interest disclosures and maintaining liability insurance.

We have been advised that the UMA Drafting Committee Chair and Reporters are considering adding reference to impartiality in the Application and Construction Section in Section 2(3). We would support the underlined addition
below.

Proposed Section 2(3): the policy that the
decision-making authority in the mediation process rests with the parties, assisted by an impartial mediator; and

In addition, Reporter Nancy Rogers has indicated a willingness to recommend a legislative note in the Definitions Section that would state the following:

Proposed Section 2 Legislative Note: Legislators should note that if definitions are used for other purposes than in this act, such as for immunity of mediators or referral to mediation by a court or public agency, then a provision should be added applicable to these other purposes that defines a mediator as being impartial. Impartiality is a very important way to assure the integrity of the process. If the mediator is defined as an impartial person, then another provision should be added which states that impartiality means freedom from favoritism or bias, either by word or by action, and a commitment to serve all parties.

In the absence of the inclusion of the definition of impartiality in the Act, we would recommend the inclusion of the above provision to at least establish the need to include impartiality in the definition of mediation as it pertains to other aspects of a mediation statute. We understand that including impartial in the definition of mediation and adding the second provision we recommend above may be inconsistent with NCCUSL style rules, however we cannot overstate the importance of including impartiality in the definition.

2. CONFIDENTIALITY – At the final UMA Drafting Committee meeting, the following Legislative Note was approved by the drafters:

Section 5. Legislative Note: The [Act] does not supercede existing state statutes that make mediators incompetent to testify, provide for confidentiality of mediation, or that provide for costs and attorney fees to mediators who are wrongfully subpoenaed. See e.g. Cal. Ed. Code Sec. 703.5 (West 1994)].

We note that the italicized language “provide for confidentiality of mediation” has been removed from the current version of the UMA. It is very important to ACR that this legislative note remain in the UMA as it was adopted by the UMA
Drafting Committee in February, including the italicized language cited above,
so that it is clear to state legislatures that they may retain confidentiality protections that go beyond the UMA. Therefore, we request that you reinsert the omitted phrase and rewrite the current draft as follows:

Proposed Section 5. Legislative Note: The [Act] does not supercede existing state statutes that make mediators incompetent to testify, provide for confidentiality of mediation, or that provide for costs and attorney fees to mediators who are wrongfully subpoenaed. See e.g. Cal. Ed. Code Sec. 703.5 (West 1994)]. (Modifications requested
are underlined)

It is also crucial that subsection 5 (a) remain as revised during the New Orleans drafting meeting to read, “A mediation communication is confidential and, if privileged, is not subject to discovery or admissible in evidence in a proceeding”. It is equally important that no legislative note or comments to the UMA in any way indicate that the beginning of the subsection “A mediation communication is confidential” is intended to be inoperative – i.e., that the language applies only to the privilege.

Many state mediation statutes currently contain a similar statement about the
general nature of confidentiality of the mediation process. We believe strongly that full confidentiality is vital to the efficacy of the mediation process, and would not support any language in the black letter UMA or in any legislative notes or other official comments that would state otherwise.

While we strongly advocate the importance of confidentiality protections for mediation, we also support a legislative note or Reporter’s Note which states that an exception to confidentiality exists for the purpose of warning a potential victim or notifying appropriate authorities when threatened harm exists and also for state mandated report of abuse, neglect, abandonment, and/or exploitation of a designated vulnerable person.

3. REPORTS TO JUDGES We are very concerned about the effect of Section 8(c) as it relates to excluding “judicial officers” from the application of Section 8 (a).
Section 8 (a) states that, “A mediator may not make a report, assessment,
evaluation, recommendation, finding, or other communication regarding a
mediation to a court, agency, or other authority that may make a ruling on the
dispute that is the subject of the mediation…”

As written, under Section 8 (c) anyone whom a court deems to be a
“judicial officer” would not be prohibited from making a report about
what occurred during mediation, giving an assessment about the merits of matter mediated, or making a recommendation to the court. Clearly, when this occurs the very purpose of the Act is defeated: to provide mediation participants the opportunity to be candid by assuring them that their mediation communications will be kept confidential.

The reason Section 8(a) was included in the UMA was to assure confidentiality
and to make sure that mediators cannot coerce settlement agreements from
parties by threatening to write adverse recommendations and reports to judges.

Section 4 (b)(4) attempts to address this “loophole” by stating,
“This [Act] does not apply to a mediation conducted by a judicial officer
who might make a ruling on the case or who is not prohibited by court rule from
communicating with a court … as provided by Section 8 (a).” Unfortunately, this attempt fails to address the vital need — to prohibit mediators who the court deems to be “judicial officers” from making such reports, recommendations, etc.

Should a court in any state that adopts the UMA, as written, determine that a
mediator in a court-connected mediation is a “judicial officer”, nothing would prohibit these mediators from giving their opinions, evaluations or recommendations to a court, nor would a court be prohibited from considering
them.

We can envision the very real possibility — or even probability — that courts in some states may interpret any the following persons, among others, who conduct court-connected mediations to be “judicial officers”: court-appointed mediators; members of court mediation rosters; special masters; referees; and court personnel, including judges, magistrates, and court employed mediators. We strongly believe that none of these mediators should be excluded from the prohibitions provided in Section 8 (a).

While we are sensitive to the drafters concerns about constitutional separation
of powers, the ambiguity created by Section 8 (c) should not remain in the UMA.

We believe the best way to accomplish closing the loophole is by simply
deleting the words “(a)” and “and” from Section 8 (c) so that the prohibition will apply to all mediators, including any who are deemed to be “judicial officers.” This suggested revision would read as follows:

Proposed Section 8(c): [Subsection[s] (a) [and (d) through (f)]
do[es] not apply to an individual acting as a judicial officer.]
(Modifications requested indicated by strikethrough lines for deletions and underline for additions.)

This recommended revision squares precisely with the California Supreme Court’s 6 – 0 decision on July 9, 2001 (Foxgate Homeowners’ Association v. Bramalea, Opinion #S087319) to uphold virtually the same provision contained in the California mediation confidentiality statute. (California Evidence Code 1115, et. seq.)

Should the drafters and NCCUSL be unwilling to make this requested
modification, we recommend that, at a minimum, the term “judicial
officers” be changed to “judges” in Section (c). This narrowing of the term would at least send the clear message to courts that no court-connected mediators, other than judges, are permitted to make reports, recommendations, etc. to a judge who might make a ruling on the case. We
are open to other ways to address this concern as well. This alternative revision would read as follows:

Alternative Proposed Section 8(c): Subsection[s] (a) [and (d) through (f) do[es] not apply to an individual acting as a judicial officer a sitting judge.
(Strikethrough indicates deletion and underline indicates proposed
addition. Note other changes to 8(c) have been proposed above as our first preference.)

4. MINORS/PEER MEDIATION – As we articulated in our March 22 response,

(and as was included in the April 23, 2001 draft of the UMA), we believe that the exclusion of “peer mediation” programs should not be linked to the age of the students. The current draft language, which exempts from the Act “mediation involving parties who are all minors which is conducted under the auspices of a primary or secondary school or correctional institution …” would result in confusing and unpredictable application. Specifically, since many students reach the age of majority while in secondary school, mediators would be required to obtain the age of the students (or residents of correctional
institutions) appearing for mediation in order to determine if the Act applies.

Therefore, we recommend that you adopt the following revision which was included in the April 23, 2001 draft UMA and that was widely circulated and discussed during the plenary session at the ABA Section on Dispute Resolution conference shortly thereafter:

Proposed Section 4(b)(3) conducted under the auspices of a primary or secondary school that involves a student of that school or under the
auspices of a correctional institution for youths which involves a resident of that institution.

5. NOTICE WHEN PRIVILEGE HAS BEEN REMOVED – The drafters, at the final drafting meeting, adopted a provision that provided that all participants, not just named parties, had a right to know whether their statements were privileged when they spoke in mediation. Since that final meeting the draft was changed and now undercuts this right by allowing the named parties to secretly agree to remove the privileges from a particular session without notifying other participants. After discussions with the Chair and Reporters, it is our understanding that there is no objection to the final sentence being restored so that the subsection would read:

Proposed Section 4(c) If the parties agree in advance that all or part of the

mediation is not privileged, the privileges under Sections 5 through 7 do not apply to the mediation or part agreed upon. The agreement must be in a signed record or reflected in the record of a proceeding. However, Sections 5 through 7 still apply to a mediation communication made by a person who has not received actual notice of the agreement before the communication is made. (Modification requested underlined).

6. PRECLUSION OF PRIVILEGE
It is our understanding that the words “for the primary purpose” in Section 6
(c) were taken out of the Act after the final UMA drafting committee
meeting. We believe that this modification is substantive and greatly lowers the threshold upon which one can lose his or her privilege to all mediation communications. We request that the words be reinserted or other language be included which more appropriately raises the threshold for loss of the privilege for all mediation communications.

We believe the reason the Committee adopted the phrase ‘for the primary purpose’ in Section 6(c) at the last meeting was to assure that innocent brainstorming of potential resolution ideas would not be curtailed by the fear of loss of all privileges. We are concerned that the lower threshold for loss of a party’s entire privilege will serve to inhibit brainstorming (a fundamental part of problem solving) and serve to reduce the active participation of parties for fear they might inadvertently waive all privileges. We are also concerned that
there is little difference between Section 6(c) and 7(a)(4) and the courts will
have difficulty determining when the entire privilege is lost and when the
privilege is lost only for a given mediation communication.

Therefore, we recommend that Section 6 (c) be revised as it was approved during the last UMA drafting meeting to read as described below or the threshold for loss of the entire privilege be raised in some other meaningful manner:

Proposed Section
6(c) A person who intentionally uses or attempts to use a mediation for the primary purpose of planning or concealing a crime or criminal activity, or committing a crime, may not assert the privilege under Section 5. (Replace subsection as underlined).

7. SUMMARY ENFORCEMENT
PROCEEDINGS
– We strongly support the UMA Drafting Committee’s
recommendation that optional Section 11 pertaining to the summary enforcement of mediated settlement agreements not be adopted. There is no need for uniformity of summary enforcement and this provision, if adopted, needs more thoughtful consideration.

8. APPLICATION AND CONSTRUCTION
While ACR understands that NCCUSL does not usually include a section on
Application and Construction, we strongly support the need for such a provision
in this act. The language set out in proposed Section 2 makes the purpose of the UMA clear and provides important guidance to state courts and legislatures regarding the critical principles of mediation as they apply and construe this act.

In addition to the eight issues listed above, ACR continues to believe that optional subsections 8 (d) through (f) should be deleted from the UMA.
While we fully support the notion that mediators should disclose all
conflicts of interest — either actual conflicts or ones that may be perceived
by parties to be conflicts – we believe that the currently proposed provisions
are inadequate and that it is premature to mandate such disclosures in the
UMA. We believe that such regulation should be left for various states to develop before uniformity of these requirements is considered.

Should the UMA be revised to address the concerns we have articulated, and no other substantive changes are made, ACR will support the act. If the act
does not reflect these concerns, we intend to pursue revisions to meet these
concerns when the act is presented during the NCCUSL Legislative Session, to
the ABA and, if adopted by NCCUSL, during consideration by individual state
legislatures.

We again wish to convey our appreciation for the opportunity to share our views and concerns with you through our Official Observers, Dennis Sharp, Esq. and Gregory Firestone, Ph.D., during the creation of the UMA over the past three years. As we have inthe past, we remain committed to working with you to create language that meets the concerns of the mediation community, UMA drafters, attorneys, courts and any others who may be involved in the mediation process.

Gregory Firestone will be attending the NCCUSL annual meeting in August on behalf of the Association for Conflict Resolution and is authorized to speak on our behalf. During the meeting, designated ACR members will be available for Professor Firestone to consult with should any revisions not outlined in this response be considered by the UMA Drafting Committee in an effort to assist you in finalizing a Uniform Mediation Act that best addresses the needs of all involved and can be endorsed by the Association for Conflict Resolution.

Respectfully,

Arnold Shienvold, Ph.D.

President, Association for
Conflict Resolution

cc: NCCUSL and ABA UMA Drafting Committee Members

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ACR ACR

The Association for Conflict Resolution (ACR) is the professional organization dedicated to enhancing the practice and public understanding of conflict resolution. ACR represents and serves a diverse national and international audience that includes approximately 5,000 mediators, arbitrators, facilitators, educators, and others involved in the field of conflict resolution. ACR also… MORE >

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