End of the Cold War: The Marriage of Mediation and the Court System

“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.

CONCLUSION

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.

                        author

Jeffrey Krivis

Improvisational Negotiation. This phrase summarizes Krivis’ philosophy for a successful and dynamic mediated negotiation. A successful mediation needs both keen legal insight gained from years of litigation experience and cannot be scripted. Exploring this idea with further study led Krivis to venture on the stage as a stand-up comedian. Ultimately,… MORE >

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