October 18, 2000
The Honorable Michael B. Getty, Chair
NCCUSL Uniform Mediation Act Committee
1560 Sandburg Terrace, #1104
Chicago, IL 60610
Dear Judge Getty:
In January 2000, I presented to the Uniform Mediation Act (UMA) Drafting Committees an Academy of Family Mediators (AFM) resolution outlining eleven principles that AFM believed should guide the development of a UMA. In June 2000, the Society of Professionals in Dispute Resolution (SPIDR) adopted virtually the same eleven guiding UMA principles. In July 2000, AFM modified their previous UMA resolution and adopted the minor changes suggested by SPIDR. In this letter, we are forwarding the eleven jointly endorsed principles which have been adopted by both AFM and SPIDR and will review the current draft of the UMA according to these eleven principles. This letter has been reviewed by the AFM Executive Board and the analysis contained herein reflects our view of the current published UMA black letter draft. Suggested modifications, where offered, are provided to offer one way in which our concerns can be addressed. We are certainly open to other possible modifications that would accomplish the same end.
1. Addresses only those areas (such as confidentiality) where uniformity is required
Both organizations have gone on record as supporting a UMA which only addresses those areas where uniformity is required. At this point in time, the only area which we believe requires uniformity in the UMA is in the area of confidentiality. We do not feel that uniformity is required for Sections 10(a), 10(c), 11, and 12 and recommend that these provisions be removed from the UMA. Further, Sections 10(a) and 10(c) address mediation procedures which we feel should not be addressed in this Act. Mediation procedures, like the other above mentioned sections should be left up to each state to determine. In some states these provisions have been addressed by the court and not the legislature. There is no need to legislate uniform mediation procedures. Similarly, Section 11 (Party Choice of Accompanying Individual) and bracketed Section 12 (Optional Summary Enforcement of Mediated Settlement Agreements) do not need to be uniformly applied across all states. We do not feel the time is right for a comprehensive mediation act. There is still a great deal of
innovation occurring in the field and we believe it would be counterproductive to attempt to legislate conformity at this time.
Many mediators within our organizations believe that the UMA should provide that mediation communications are confidential as is currently the practice in many states around the country. Confidentiality provisions such as the following have been suggested:
All mediation communications are confidential. Any person participating or having participated in a mediation shall not disclose mediation communications. Any party may seek to prevent any other person participating or having participated in the mediation from disclosing mediation communications.
We are aware that some Drafting Committee members are concerned that such a confidentiality provision might put an additional burden and liability upon mediation participants. We are also aware that, in fact, some participants do talk with family members and others following mediation despite some state laws that currently provide that mediation is confidential. However, it appears that those states where confidentiality protections exist have not experienced the types of problems that opponents to this provision have feared. That is, there does not appear to be substantial evidence that individuals have become liable for damages as a result of inadvertent disclosure. We urge the Drafting Committee to reconsider this issue, and to consider inserting a confidentiality provision, if not as a requirement of the Act, at least as bracketed language where states would have the option of including or excluding confidentiality. Given the fact that many states already have a confidentiality provision, including a bracketed confidentiality provision may make passage of a Uniform Mediation Act more likely to be accomplished.
2.Preserves party empowerment and self determination
In order to better instill the principles of self-determination in the UMA, we would recommend consideration of the following:
Add to Section 2. Application and Construction a Section 2(4) stating that ‘the policy of advancing the principle of self-determination by the parties by empowering the parties to determine their own disputes in ways that are likely to satisfy the interests of all parties involved.’
Define mediation in Section 3(1) as ‘Mediation means a process in which a mediator facilitates communications and negotiations between the parties to assist them in reaching a voluntary agreement regarding their dispute. Decision making authority rests with the parties, and any decisions or settlement reached by parties to the agreement must be mutually acceptable and voluntary.
Review section 13 Effect of Agreements; Nonwaiveable Provisions and modify it so that it does not unnecessarily limit the parties’ ability to shape confidentiality provisions that are consistent with current law. For example, in public policy mediation, I am told that parties sometimes agree that, even though open record laws preclude meeting in secrecy, mediation communications will not be introduced by the parties into any subsequent judicial proceedings.
3. Provides adequate, clear and specific confidentiality protections and, where necessary, limited and clearly defined exceptions that would maintain mediation as an effective confidential process in which people are free to discuss issues without fear of disclosure in legal or investigatory procedures
The Act needs greater clarity. Here are some examples of how that could be accomplished.
Section 5(b): Replace ‘mediation communication’ with ‘evidence’ in 5(b) so that 5(b) reads as follows: ‘Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.’ This section refers to the admissibility of evidence that is otherwise admissible not the admissibility of mediation communications.
Section 9(a)(1): modify to read ‘for a signed record of an agreement between two or more parties.’ Unsigned records could include mediators notes that reflect developing agreements that are confidential and not binding upon the parties. The court would have a difficult time trying to determine what is an agreement reached during mediation if agreements don’t need to be signed.
Proposed 9(a)(2): The proposed language is preferable to the black letter draft, however it seems to be too encompassing. We don’t feel it is necessary to prevent the parties from agreeing that mediation communications in a mediation open to the public will be inadmissible in court.
Section 9(a)(3): This section introduces the term ‘participant’ which is not defined. Does participant include all those present, or does it exclude a judicial officer as the definition of party excludes judicial officer? It is not clear. Is the mediator a participant? We recommend that the term participant be defined.
Section 9(b)(3): Also, the terms ‘public health and safety’, are unnecessarily vague. While we support the concept that there may need to be exceptions to protect the public from significant health risks and threatened violence, we would seek greater clarity in describing this exception.
Section 13: While it is understandable that some of the drafters wish to prevent the parties from expanding the scope and protections in this Act, we feel that one must be careful not to unnecessarily hamper the parties from finding creative and constructive ways to negotiate with one another. For example, as mentioned above, we are concerned that these provisions would prevent public policy mediation participants from agreeing not to admit certain mediation communications in court. Even though public record and sunshine laws may require meetings to be open to the public, there is no need to prevent parties from making creative agreements that are consistent with public record laws and shelter mediation communications from court.
4. Reflects an understanding of the diversity of mediation styles and range of disputes mediated
We are concerned that the Act falls short in a number of areas at present. There have been constructive changes made in proposed 6(3) [language similar to this was actually approved by the Drafting Committees in Washington, D.C.] to permit the continued mediation of child protection cases (and other cases involving certain vulnerable individuals) by providing better protections for admissions of allegations under negotiation from being admitted in the court in which the allegations have been raised. However, we are concerned that there are no protections to prevent these mediation communications from being admitted in criminal court. Similarly, we are concerned that mediation communications in a victim offender or similar criminal mediation have little protection from being admitted in a felony criminal judicial proceeding. We would like to see provisions added to accomplish this end.
Another concern involves how this Act will be applied on Native American Reservations. I am told that Public Law 280 will result in this Act having jurisdiction in some states on Native American reservations. It is my impression that the Drafting Committees have not had sufficient input from the Native American community regarding whether they wish this Act to apply and if so, in what manner. For example, I don’t know whether the requirement for non-court referred mediation to have a written agreement to mediation will create problems in any of the cultural contexts in which mediation is currently conducted. We would recommend that the Committee consult with appropriate cultural and legal experts in this area to determine how this Act will benefit or harm conflict resolution in Native American cultures.
The definition of mediation is very broad, and we have number of questions. What implications will this Act have for ombudspersons? Will family group conferencing fall under the definition? Will anyone who counsels couples be able to use an agreement to mediate to possibly broaden the scope of confidentiality? These issues remain unresolved at this time, and the Committee should consult with other groups who may not consider themselves mediators, but nonetheless may be affected by this Act. In conclusion, we believe that the Drafting Committees have an affirmative responsibility to reach out to those groups who may be affected in order to better understand the impact of this Act outside the traditional mediation field prior to completing the UMA drafting process.
5. Is easily understandable by mediation participants
The structure of the Act needs to be simplified. There is no consistency in the numbering of the subsections. For example Subsections in Section 2 are numeric but subsections in Section 4 are set out alphabetically. In addition, the language in the UMA needs to be simplified further so that it can be understandable to mediation participants. For example in Section 4(a) the terms ‘manifest their agreement’ should be replaced with simply ‘agree.’ We would recommend that the Committees hire a professional with specific expertise in adult learning or a similar field to review the entire Act and make specific recommendations to simplify the Act.
In order to best accomplish the goals of this Act, all participants need to be able to understand its provisions. In reviewing this Act with legal experts, it is clear that the Act is still not easily understandable even to experts in the field. In order to empower mediation parties and ensure a uniformity of understanding as well as a uniformity of application, this Act needs to be more easily understandable.
6. Preserves mediation as a process that is separate and distinct from the practice of law; arbitration, and judicial proceedings
The previous black letter draft had a bracketed provision that excluded a privilege for ‘pretrial conferences conducted by a judge or other judicial officer who may make or inform rulings on the subject matter of the conference.’ We believe that it is important to distinguish mediation from other processes where the facilitator is also a decision maker. It is unclear why this concept has been removed from the current draft, and we would like to see this distinction appropriately included in the UMA.
We would hope that the Reporters’ Notes would highlight the notion of mediation being a non-adversarial and informal process. As there are no Reporter’s Notes in this current black letter draft we are not clear as to what will appear in the final version. We see the Reporter’s Notes as a valuable opportunity for the drafters to enhance not only the understanding of the UMA but also the understanding of important mediation concepts.
7. Provides that mediators may come from a variety of professional and nonprofessional backgrounds
Section 3(3) addresses this issue by stating that a mediator is ‘an individual, of any profession or background . . . ’ We are satisfied that the UMA clearly addresses our concerns in this area.
8. Provides procedural protections for the disputants, the mediator, and the process when exceptions to confidentiality are raised
The in camera protection is important for some of the exceptions for confidentiality. Given that the exceptions that require an in camera inspection by the court are limited to a few, we would be open to removing the word ‘substantially’ from Section 9(b). If the other conditions are met, that is the information is otherwise not available and the enumerated circumstances are necessary and few, then the court need only find that ‘there is a need for evidence that outweighs the importance of this [Act’s] policy favoring the protection of confidentiality . . . ’
We are concerned that the Act does not clearly limit the use of mediation communications in other proceedings. While 9(c) clearly states that if mediation communications are admitted, then ‘The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose.’ However, the purpose is not always clear. For example, in 9(a)(4) there is an exception to the privilege for a ‘participant who uses or attempts to use the mediation to plan or commit a crime . . . ’ Nowhere, though, does it explain the ‘purpose’ of this exception to enable the reader to determine what court proceedings should allow these mediation communications to be admitted. For section 9(c) to be clear, we feel that each exception must indicate the purpose for which the exception exists.
9. Adequately addresses how mediators, parties, and representatives are to comply, if at all, with mandatory reporting requirements that may be required by law or professional ethical standards
Given the absence of confidentiality provisions for mediation communications, it would seem at first glance that this Act permits mandatory reporting of abuse, neglect, abandonment, or exploitation as may be required by state law. However, upon closer inspection, it would appear that Section 10(b) as currently drafted would prevent mandatory reporting by the mediator as Section 10(b) provides that ‘A mediator may not provide a report . . . or finding regarding a mediation to a . . . agency or authority that may make a ruling on or investigation into a dispute that is the subject of the mediation, other than whether the mediation occurred, a report of attendance at mediation sessions, whether the mediation has terminated, and whether settlement was reached, except as permitted under Sections 8 and 9.’ We feel that this is a very important issue and believe the Act should be clear in its intent. With the exception of mandatory reporting, we do support the goal of this provision to prevent mediators from making reports to the court or others who may investigate or decide the outcome of a dispute, and merely wish the Committee to be clear on whether mediators are required to make mandatory report of abuse, neglect, abandonment, or exploitation as may be required by state law.
10. Preserves the impartiality of the mediator
We support proposed Section 3(3) where the definition of mediator includes the term ‘impartial.’ Most states have included such terms as impartial or neutral and we feel that at a minimum the definition must include the term impartial. We are open to the confidentiality provisions applying to ‘mediations’ where the mediators is found to be partial, but do not wish to compromise the integrity of the definition and role of the mediator by omitting the term ‘impartial’ from the definition.
11. Takes into consideration the special concerns raised when the threat of violence is present
The primary concern here is to allow mediators and mediation participants to take appropriate action to adequately address safety concerns that may arise in a mediation. The important issue here is that a mediator or participant may notify the intended victim or appropriate police authority to prevent seriously threatened violence. In the absence of a broad confidentiality protection, the current draft of the UMA permits participants and the mediator to take appropriate action to address safety concerns. If a broad confidentiality protection is added, then we would propose an exception that would allow the mediator and parties to take the above-mentioned steps if they believed that violence was likely imminent.
In closing, we would also like to suggest that the Committees consider establishing task forces to address some of the concerns that we have raised. We are concerned that little has happened since the last meeting approximately six months ago and believe that these task forces or subcommittees are an effective way to involve more concerned individuals from diverse backgrounds and to keep making progress on this very important project. We would also request that the Committee post drafts of the UMA on the NCCUSL website in a more timely fashion. As of the time I began to write this letter, the current draft of the UMA was still not yet posted at www.nccusl.org. While it is posted on the Harvard website, it is only available to informed individuals who know to look there. Individuals should be able to find the latest drafts easily on the NCCUSL website or should at least be directed to the Harvard website from the NCCUSL website.
In this letter we have strived to provide the Committees with a detailed analysis of the UMA according to the eleven guiding UMA principles in the hopes that such an interest-based analysis would assist the Committees in continuing their important work in this regard. We have been most appreciative of the Committee’s willingness to listen to the concerns of many of the Official Observers. I will be attending the December UMA Drafting Committee meetings and request that the Committee allocate thirty minutes to discuss this UMA review with the Board. We look forward to continuing to work with the UMA Drafting Committees. Thank your for the opportunity to review the current draft.
Gregory Firestone, Ph.D.
cc: The Honorable Chief Justice Moyer
Ms. Roberta Cooper Ramo
Ms. Nancy Rogers
Mr. Richard Reuben