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<xTITLE>August 2000 Draft of the Uniform Mediation Act</xTITLE>

August 2000 Draft of the Uniform Mediation Act

by National Conference Of Commissioners On Uniform State Laws
August 2000
Final Styled Version:

Uniform Mediation Act

National Conference Of Commissioners On Uniform State Laws

The ideas and conclusions set forth in this Draft, including the proposed statutory language and any comments or Reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They also have not been passed upon by the American Bar Association House of Delegates, the ABA Section of Dispute Resolution Drafting Committee, or any Section, Division, or subdivision of the American Bar Association. They do not necessarily reflect the views of the Conference and its Commissioners or its Drafting Committee and its Members and Reporter, or those of the ABA, its Drafting Committee, its Members and Reporter, or any Section, Division or Subdivision of the ABA. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

DRAFTING COMMITTEE ON UNIFORM MEDIATION ACT

MICHAEL B. GETTY, 1560 Sandburg Terrace #1104, Chicago, Ill., 60610, Chair

PHILLIP CARROLL, 120 E. Fourth Street, Little Rock, AR 72201

DAVID CALVERT DUNBAR, P.O. Box 2990, Jackson, MS 39207

ELIZABETH KENT, P.O. Box 2560, Honolulu, Hawaii, 96804

JOSE FELICIANO, 3200 National City Center, 1900 E. 9th Street, Cleveland, OH

44114-3485, American Bar Association Member

NANCY H. ROGERS, Ohio State University College of Law, Office of Academic Affairs, 203 Bricker Hall, 190 N. Oval Mall, Columbus, OH 43210, National Conference Reporter

FRANK E.A. SANDER, Harvard University Law School, Cambridge, MA 02138, American Bar Association Member

BYRON D. SHER, State Capitol, Suite 2054, Sacramento, CA 95814

MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401

EX OFFICIO

JOHN L. MCLAUGHERTY, P.O. Box 553, Charleston, W.Va., 25322. President

STANLEY M. FISHER, 1100 Huntington Building, 925 Euclid Avenue, Cleveland, OH 44115-1475, Division Chair

EXECUTIVE DIRECTOR

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

211 E. Ontario Street, Suite 1300

Chicago, Illinois 60611

312/915-0195

ABA SECTION OF DISPUTE RESOLUTION

DRAFTING COMMITTEE ON UNIFORM MEDIATION ACT

THE HON. CHIEF JUSTICE THOMAS J. MOYER, Co-Chair, Ohio Supreme Court,

30 E. Broad Street, Columbus, OH 43215

MS. ROBERTA COOPER RAMO, Co-Chair, Modrall, Sperling, Roehl, Harris & Sisk, P.A.,

Sunwest Bldg., Ste. 1000, Albuquerque, NM 87102

JOSE FELICIANO, Baker & Hostetler, 3200 National City Center, 1900 East 9th St., Cleveland,

OH 44114

THE HON. MICHAEL B. GETTY (Ret.), 1560 Sandburg Terrace #1104, Chicago, Ill., 60610, NCCUSL Representative

JAMES DIGGS, PPG Industries, 1 PPG Place, Pittsburgh, PA, 15272

RICHARD C. REUBEN, University of Missouri-Columbia School of Law, Hulston Hall,

Columbia, Mo., 65211, Reporter

NANCY H. ROGERS, Office of Academic Affairs, 203 Bricker Hall, 190 N. Oval Mall,

Columbus, OH 43210, Coordinator, Faculty Advisory Committee

JUDITH SAUL, Community Dispute Resolution Center, 120 W. State Street, Ithaca, NY 14850

FRANK E.A. SANDER, Harvard Law School, Cambridge, MA 02138

THE HON. CHIEF JUDGE ANNICE M. WAGNER, Court of Appeals of the District of

Columbia, 500 Indiana Ave., NW, Washington, DC 20001

Uniform Mediation Act

Section 1. Title

Section 2. Application and Construction

Section 3. Definitions

Section 4. Scope

Section 5. Exclusion from Evidence and Discovery

Section 6. Party Privilege

Section 7. Mediator Privilege

Section 8. Waiver and Preclusion of Privilege

Section 9. Exceptions to Privilege

Section 10. [Disclosure and Non-Disclosure by the Mediator]

Section 11. Party Choice Regarding Accompanying Individual

[Section 12. Optional Summary Enforcement of Mediated Settlement Agreements]

[Section 13. Effect of Agreements; Non-Waivable Provisions]

Section 14. Severability Clause

Section 15. Effective Date

Section 16. Repeals

UNIFORM MEDIATION ACT

* Denotes provisions upon which Task Force recommendations may be found at end of the Draft.

SECTION 1. TITLE.

This [Act] shall be cited as the Uniform Mediation Act.

SECTION 2. APPLICATION AND CONSTRUCTION.

In applying and construing this [Act], consideration must be given to:

(1) the policy of fostering the prompt, economical, and amicable resolution of disputes in accordance with the principles of the integrity of the mediation process and informed self-determination by the parties;

(2) the need to promote the candor of parties and mediators through the protection of confidentiality, subject only to the need for disclosure to accommodate specific and compelling societal purposes; and

( 3) the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 3. DEFINITIONS. In this [Act]:

(1) "Mediation" means a process in which a mediator facilitates communications and negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute.

(2) "Party" means a person, other than a judicial official, who participates in a mediation and either has an interest in the outcome of the dispute that is the subject of the mediation or whose agreement is necessary to resolve the dispute.

*(3) "Mediator" means an individual, of any profession or background, who is appointed by a court or government entity or engaged by parties through an agreement evidenced by a record.

(4) "Mediation communication" means a statement made during a mediation or for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.

(5)"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(6) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(7) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

SECTION 4. SCOPE.

(a) Except as otherwise provided in subsections (b) and (c), this [Act] applies to all forms and types of mediations in which parties manifest their agreement to mediate in a written record, or are directed or requested by a court or governmental entity, in a written record, to participate in a mediation;

(b) This [Act] does not apply to the mediation of:

(1) disputes arising under, out of, or relating to a collective bargaining relationship; or

(2) disputes involving minors that are conducted under the auspices of a primary or secondary school.

SECTION 5. EXCLUSION FROM EVIDENCE AND DISCOVERY.

(a) A mediation communication is not subject to discovery or admissible in evidence in a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding, if it is privileged under Section 6 or 7, the privilege is not waived or precluded under Section 8, and there is no exception that prevents its disclosure under Section 9.

(b) A mediation communication 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.

SECTION 6. PARTY PRIVILEGE.

*A party has a privilege to refuse to disclose, and to prevent any other person from disclosing, mediation communications a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding.

SECTION 7. MEDIATOR PRIVILEGE.

A mediator has a privilege to refuse to disclose, and to prevent any other person from disclosing, a mediation communication of the mediator in a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding. A mediator also has a privilege to refuse to disclose evidence of mediation communications in such a proceeding.

SECTION 8. WAIVER AND PRECLUSION OF PRIVILEGE.

(a) The party privilege in Section 6 may be waived, but only if expressly waived by all parties, either in a record or orally during a judicial, administrative, or arbitration proceeding. A party who makes a representation about or disclosure of a mediation communication that prejudices another person in a judicial, administrative, or arbitration proceeding may be precluded from asserting the privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

(b) The mediator's privilege in Section 7 may be waived, but only if expressly waived by all parties and the mediator, either in a record or orally during a judicial, administrative, or arbitration proceeding. A mediator who makes a representation about or disclosure of a mediation communication that prejudices another person in a judicial, administrative, or arbitration proceeding may be precluded from asserting the privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

SECTION 9. EXCEPTIONS TO PRIVILEGE.

(a) There is no privilege or prohibition against disclosure under Section 5, 6, or 7:

(1) for a record of an agreement between two or more parties;

*(2) for a mediation communication made during a mediation that is required by law to be open to the public;

(3) for a threat made by a mediation participant to inflict bodily harm or unlawful property damage;

(4) for a mediation participant who uses or attempts to use the mediation to plan or commit a crime;

(5) for a mediation communication offered to prove or disprove abuse, or neglect, abandonment, or exploitation in a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law.

(b) There is no privilege or prohibition under Section 5, 6, or 7 if a judicial, administrative, or arbitration tribunal or court finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the importance of this [Act’s] policy favoring the protection of confidentiality and:

(1) the evidence is introduced to establish or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator, a party or a representative of a party based on conduct occurring during a mediation;

(2) the evidence is offered in a judicial, administrative, or arbitration proceeding in which fraud, duress, or incapacity is in issue regarding the validity or enforceability of an agreement evidenced by a record and reached by the parties as the result of a mediation, but only if evidence is provided by a person other than the mediator of the dispute at issue; or

(3) for a mediation communication that evidences a significant threat to public health or safety.

( c) If a mediation communication is admitted under subsection (a) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure shall be admitted. 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.

SECTION 10. [DISCLOSURE, NON-DISCLOSURE BY THE MEDIATOR.]

(a) Before commencing a mediation, a mediator shall make an inquiry that is reasonable under the circumstances to determine whether there are any facts that a reasonable person would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationships with a party or foreseeable participant in the mediation. The mediator shall disclose any such fact known or learned by the mediator to the parties as soon as is practical.

( b) A mediator may not provide a report, assessment, evaluation, recommendation, or finding regarding a mediation to a court, 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.

(c) If asked by a party, a mediator shall disclose the mediator’s qualifications to mediate a dispute.

SECTION 11. PARTY CHOICE OF ACCOMPANYING INDIVIDUAL.

A party has the right to have an attorney or other individual designated by the party attend and participate in the mediation. A waiver of this right may be rescinded.

[SECTION 12. OPTIONAL SUMMARY ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.

(a) Parties entering into a mediated settlement agreement evidenced by a record executed by the parties, their attorneys, and the mediator may petition the [….] court to enter a judgment in accordance with the settlement agreement, provided that:

(1) All parties to the settlement agreement are represented by counsel at the time of settlement;

(2) The settlement agreement contains a statement to the effect that the parties are all represented by counsel and desire to seek summary enforcement of their agreement,

(3) Notice is given to all parties within [30] days of the filing of this petition;

(4) The agreement does not relate to a divorce or dissolution; and

(5) No party to the agreement files an objection with the court within [30] days of receipt of this notice.

(b) The court may enter judgment if:

(1) the provisions of subsection (a) are met;

(2) no party has filed an objection; and

(3) no party has made a showing of corruption, fraud, or duress.

( c) The judgment may be recorded, docketed and enforced as any other judgment in a civil action.]

[SECTION 13. EFFECT OF AGREEMENTS; NONWAIVEABLE PROVISIONS.

(a) The parties cannot by agreement expand the scope of the [Act] defined in Section 4.

(b) The parties and mediator cannot by agreement expand the protections of the privileges provided in Sections 6 and 7.

( c) The parties and mediator can by agreement waive the mediation privilege protections of Sections 6 and 7, as provided in Section 8.

(d) The parties cannot by agreement waive the exceptions to the mediation privilege provided in Section 9.

(e) The parties and mediator can by agreement expand the nondisclosure of mediation communications, except as disclosure is required by a court, administrative agency, or arbitration under Sections 5, 6, 7, 8, and 9, or is required under contract law.

(f) The parties by agreement may vary the requirements of Sections 10(a) and (d), but may not vary the requirements of subsection 10( c) and Section 11.]

SECTION 14. SEVERABILITY CLAUSE.

If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

SECTION 15. EFFECTIVE DATE.

This [Act] takes effect ...............

SECTION 16. REPEALS.

The following acts and parts of acts are hereby repealed:

TASK FORCE PROPOSALS FOR CHANGES

Task Forces appointed by the Chair have suggested the changes listed below. The Drafting Committees have not yet acted on the proposed changes. After a brief discussion of the mission of the Task Force, the current black letter text is presented in bold-faced type, with Task Force recommended language included in italic type.

SECTION 3. DEFINITIONS

A Task Force appointed by the Chair recommends including the concept of mediator impartiality in the definitions section, both amending the definition of mediator to include the word "impartial" as follows, and in providing a separate new definition of impartial.

(3) "Mediator" means an impartial individual, of any profession or background, who is appointed by a court or government entity or engaged by parties through an agreement evidenced by a record.

(x) "Impartial" means freedom from favoritism or bias, either by word or by action, and a commitment to serve all parties.

The Reporter’s Working Notes for the new definition of impartiality would reflect that the language is substantially similar to the definition of mediation approved by the Society of Professionals in Dispute Resolution in another setting.

SECTION 6. PARTY PRIVILEGE

The Drafting Committees have been considering the addition of language to address two special situations. Subsection 2 makes the privilege applicable in juvenile or adult felony

proceedings, but only if the mediation is conducted by a program that a state has designated as one deserving special protection. The bracketed statement alerts each state to designate the programs to be covered. Subsection 3 makes the privilege applicable in proceedings related to the protection of certain vulnerable persons. It should be read in connection with Section 9 (a) (5), which otherwise makes exception for these proceedings. The purpose is to allow states to provide for and encourage these special mediation programs while following the more typical state approach of leaving admissions of abuse admissible in such proceedings if made in other mediation settings. The following italicized language represents how the text of Section 6,

Party Privilege, would read with provisions delineating these two specific contexts.

A party has a privilege to refuse to disclose, and to prevent any other person from disclosing, mediation communications in:

(1) a civil proceeding before a judicial, administrative, arbitration, or juvenile court or tribunal, or in a criminal misdemeanor proceeding.

(2) a criminal or juvenile delinquency proceeding related to the matter mediated by [states to insert designated programs] unless a court determines after a hearing in camera that the evidence is otherwise unavailable and that an injustice would occur of such a magnitude as to outweigh the state’s policy favoring confidentiality in mediation.

(3) a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law, if

(A) the case is referred by a court [or possible insertion of other

officials];

(B) the public agency participates in the mediation; or

(C) the case being mediated involves allegations of abuse, neglect, abandonment, or exploitation of these protected persons and the mediation was conducted by a program supported by public funds to mediate such cases.

SECTION 9. EXCEPTIONS TO THE PRIVILEGE.

A. Section 9(a)(2) currently addresses so-called public policy mediations, i.e., mediations that involve a governmental party. The Draft provision currently reads:

(2) for a mediation communication made during a mediation that is required by law to be open to the public;

A task force appointed by the Chair has suggested that the Drafting Committees modify the current language to read as follows:

(2) for a mediation communication that is made in a session of a mediation that is open to the public or pursuant to an open meeting or open records law.

B. The Drafting Committees have been considering inclusion of language referring to proposed Section 6. The revised section, with changes in italics, would read:

(5) for a mediation communication offered to prove or disprove abuse, or neglect, abandonment, or exploitation, except as provided in Section 6 (3), in a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of a child, disabled adult, or elderly adult protected by law.

SECTION 10. [DISCLOSURE, NON-DISCLOSURE BY THE MEDIATOR.]

A Task Force appointed by the Chair has recommended a provision that would complement task force recommendations regarding the use of the word "impartial" in the definition of "mediator," and the related recommended definition of "impartial," with the following new provision to address the consequences of a finding that a mediator was not "impartial."

(x) The protections of this [Act] do not apply to a mediation if a mediator is not impartial, unless a party reasonably believed the mediator to be impartial. However, if a party reasonably believed the mediator to be impartial, then the party shall have the protections of the [Act].

Comments should be received no later than November 1, 2000, for fullest consideration. They should be sent to: Nancy H. Rogers, Reporter for the NCCUSL Drafting Committee and Coordinator for the Academic Advisory Faculty of the ABA Drafting Committee, Platt Professor of Law and Vice Provost, Ohio State University, Office of Academic Affairs, 203 Bricker Hall, 190 N. Oval Mall, Columbus, OH, 43210 ( phone: 614-292-5881; fax: 614-292-3658) and Richard C. Reuben, Reporter for the ABA Drafting Committee, University of Missouri-Columbia School of Law, Hulston Hall, Columbia, Mo., 65211 (phone: 573-884-5204; fax: 573-882-3343).