Initial IAM Letter Opposing UMA
January 28, 2002
Richard C. Reuben,
Associate Professor University of Missouri-Columbia School of Law
Hulston Hall Columbia, MO 65211
RE: IAM Position on UMA
After lengthy consultation with the International Academy of Mediators (IAM) Board and IAM members, the IAM remains unable to provide full support for the proposed statute and will maintain its opposition to the Uniform Mediation Act (UMA).
The IAM feels that many important clarifications were made by way of the “Comments” that you and I discussed and worked through. However, it was felt that the “Comments” would not be considered part of the actual law if the UMA were adopted in any particular state. Therefore, the actual utility of the “Comments”, in comparison to the IAM’s continuing concerns about the black-letter law, was not considered sufficient to change the IAM’s Board Resolution opposing the Act.
Once again, you and your colleagues are to be commended for the prodigious effort and sincere motivation involved in creating the UMA. I wish you to understand that the IAM’s decision to continue its opposition is motivated, as well, by our sense of commitment to maintaining the integrity and effectiveness of mediation as an important dispute resolution alternative to litigation. As expressed to you in the past, the more mediation is made to look like a court or litigation procedure, the less social and practical utility it will have and the more it will take on the adversarial characteristics and shortcomings of litigation.
The popularity of mediation also comes as social response to the existing dispute resolution processes (i.e., the Courts) and not as a consciously designed intellectual construct. The IAM believes that the complexity and legalistic nature of the proposed UMA, while perhaps intellectually justified in order to cover all of the legal issues, will ultimately impede rather than advance the growth and development of mediation. We also view mediation as a means by which our citizens can be educated to new and better habits for resolving conflicts as they inevitably arise in their daily lives. In this regard, democracy is strengthened, as well, for with more responsible citizens come stronger communities and a nation.
In conclusion, the IAM continues with its objections for the reasons we have previously enunciated. We remain committed to further efforts to resolve differences as you and your colleagues may wish to undertake. Our view remains, however, that significant matters of substance must be addressed and resolved before the IAM will feel that its commitment to mediation as a practice and an ideal, as well as to its members and the public in general has been satisfied.
With best regards, I remain
Steven L. Schwartz
December 24, 2001
Richard C. Reuben,
University of Missouri-Columbia
School of Law
Columbia, MO 65211
RE: IAM Position on UMA
Let me first begin by expressing our appreciation for your efforts in working towards an amicable resolution of concerns that organizations like the IAM have about the UMA. I applaud, as well, the very well intentioned efforts by the you and your drafting colleagues including Nancy Rogers and Michael Getty to bring about a better understanding and acceptance of mediation through the vehicle of the proposed mediation statute.
As you know, the IAM has been offering its views about the UMA since our Washington, D.C. conference in November of 1999 when you and Nancy Rogers were our guest presenters on the UMA project. Even before the conference, many IAM members had been significantly involved in the debate.
Until the IAM’s November 2001 conference, our organization was on the road towards accepting the apparent inevitability of a uniform mediation act. We had been active in providing analysis and proposals for improving the draft and felt that with a bit more “tweaking”, the IAM could be in a position to support adoption. You and your colleagues, while not always agreeing, still listened and responded positively to many of our suggestions.
The IAM’s November 2001 conference included on agenda item to update us on the UMA and discussion about whether the IAM could lend its support. We had anticipated reviewing what we thought was the most recent draft, with which most of us thought we were familiar. However, shortly before the Conference convened, we came to learn that certain changes had been made, apparently without public comment (at least to our knowledge). In particular, Section 9 was changed to provide for loss of the mediator “privilege” in the event of nondisclosure of conflicts of interest, information or mediator qualifications. Our analysis of this change produced the Board of Governors’ and conference attendees’ unanimous condemnation of the proposed approach to the nondisclosure issue.
DIFFICULTIES WITH SECTION 9
The IAM agrees whole-heartedly with the principles of disclosure provided in this latest draft. Mediation can serve neither the private interests of the parties to a conflict nor the public’s interest in a legitimate alternative to litigation unless there is complete confidence in the mediator’s neutrality. However, the draft Section 9 language serves neither the parties’ nor the public’s interests and does nothing to establish an effective incentive to maintaining mediator neutrality. More specifically, we point out the following:
1. From a definitional standpoint, we are perplexed by the mixing of terms “individual”, “mediator” and “person” in Section 9. Given the precision with which the drafters have otherwise crafted the UMA language, we believe there must be some theory or rationale behind this approach. However, such a theory and rationale escaped even our own law professor members. In particular, we do not understand the applicability of the term “person” to what seems to be the mediator privilege/nondisclosure/penalty concept. Given that a “person” is defined to be everything from an individual to an estate to a public body, the applicability to a mediator is questionable.
2. We are concerned that the mediator’s loss of his/her privilege will be exploited by litigation counsel who are looking for a way to utilize information, including admissions, disclosed during mediation that could otherwise not be used in the parties’ judicial proceeding or one involving a mediating party and/or third party. Supporters of the draft have explained to us that the draft provides for a mediation party’s or participant’s “separate” right to object to such an attempt at disclosure and to assert the party’s/participant’s “separate” privilege thereby blocking such a strategy. If that is indeed the case, one problem is solved.
However, we believe, as do many other organizations, that the existing language does not clearly spell out this “separate” right. Indeed, most of those with whom we have discussed this issue have, even after several readings, conclude that for the UMA’s supporters’ interpretation to be above question, further word smithing must be undertaken. If not, the consensus is that loss of the mediator’s privilege resulting from non-disclosure (whether inadvertent or intentional) will result in a feeding frenzy of legal arguments over the interpretation of the clause. In turn, and until the courts eliminate the uncertainty by rendering a definitive ruling, mediation as a viable ADR process stands to loose its attractiveness. It would seem that a remedy to this delimma is to make very explicit that the parties/participants to a mediation retain the separate right to assert the privilege of confidentiality for disclosures made during mediation despite the mediator losing his/her own right to do so.
Even assuming that this “separate” right issue is resolved, a very practical problem remains–and one raised not only by mediators but by many litigators familiar with the draft, as well: How will a potentially objecting party gain notice or opportunity to object, in a subsequent, contemporaneous or different proceedings that does not include the objecting party. For instance, A and B are involved in a product liability case and the mediator’s privilege is lost in that case. A is subsequently involved in another proceeding with C, but not B, and A wants to use information form the A/B mediation in this other case. Specifically, A wants to depose the defaulting mediator about facts disclosed in either the group session or individual caucuses by B. Assuming that B does have the right to object and assert a separate mediation confidentiality privilege, how does B get notice of what A intends to do and how does B assert the privilege?
This is by no means a theoretical issue especially in “stream of cases” situations, class actions and suits against a common defendant by multiple but unrelated plaintiffs–all routine litigation situations. If, following our A-B-C example above, A is successful in conducting the mediator’s deposition, then what has occurred is exactly what mediation confidentiality aims to avoid: The creation of new evidence in the form of hearsay, admissions, opinions and anything that transpired during the mediation. This flaw, therefore, becomes a fatal strike at the very core of why parties and participants are willing to mediate at all–they are not compromising their legal positions and the expectation that in mediation settlement discussions everything will remain confidential and will not be used against them at some future time. The utilization of mediation as a non-litigation conflict resolution approach is thus chilled and its practical as well as social effectiveness is lost. 3. Having been a litigator for a goodly part of my legal career, litigating cases from traffic court to the U. S. Supreme Court, I understand the litigator’s mind–look for the evidence, preserve the ability to object, create grounds appeal and win your client’s case all ethically of course. The more mediation is seen as an adjunct to the judicial process and the more it takes on the trappings and terminology of litigation, the more it will resemble and be treated as just another form of litigation. One needs only look at what seems to be happening with arbitration to conclude that speed, cost savings, less formality and less adversarialism are no longer the hallmarks of this ADR process.
Treating mediation confidentiality as an evidentiary “privilege” is one thing and remains a point of philosophical difference with the UMA. Linking the ethical imperative of mediator neutrality by means of voiding the mediator’s confidentiality privilege for violation of the disclosure duty is quite another. This is true especially since the mediator’s loss of the privilege in no way furthers the underlying ethical objective. Rather, it only serves to allow uncertainty to overshadow the mediation process and allow exploitation of the process for adversarial benefit.
4. Returning to the example of arbitration, when nondisclosure becomes an issue, the arbitrator’s confidentiality and the confidentiality of the proceedings are not voided. Rather, the remedy is setting aside the arbitration decision where the nondisclosure is demonstrated to be material to the decision. In the UMA version, however, neither a specific remedy is provided for (other than voiding the mediator’s privilege) nor is a standard established for determining whether the otherwise confidential proceedings may be pierced. In mediation, if the parties do not reach a settlement, there is nothing to set aside. In the case where a settlement is reached, demonstrating that the mediator’s nondisclosure was material to the parties reaching an otherwise voluntary agreement may be the appropriate remedy. However, whether the mediator loses his/her privilege is essentially irrelevant and does nothing to advance remediating the possible harm. If any remedy is appropriate, is judicial oversight of a proceeding specifically tailored to address the confidentiality of the mediation information and determine whether the nondisclosure was material. (See UMA Section 6(b).
Therefore, it would seem more productive to consider devising a recommended process for resolving an allegation of material mediator nondisclosure than to focus on the loss mediator privilege with its attendant flaws and susceptibility to litigation abuse.
DIFFICULTIES WITH SECTION 2(2) “MEDIATION COMMUNICATION”
As you also know, the IAM remains concerned that the definition of “mediation communication” is unduly limited and does not reflect what, in actual practice, mediators consider to be confidential and what mediating lawyers and their clients reasonably expect to remain confidential. In short, the draft proposes to change how mediation works. We believe this to be both inappropriate and unjustified. Mediation confidentiality means maintaining the confidence of words, deeds and conduct whether regarded as assertive or not. To provide otherwise, opens the door to additional litigation gamesmanship and uncertainty and further diminishes the effectiveness of mediation as a valuable ADR process.
DIFFICULTIES WITH SECTION 6(A)(4) “CRIMINAL” CONDUCT
As for the UMA’s proposed exception from confidentially of “criminal” information, here is the basic difficulty as the IAM sees it. First of all, in civil actions for fraud and misrepresentation, civil assault and battery, trespass, personal injury, fiduciary duty, broker-dealer cases to name a few, the potential for the same facts to describe an arguable criminal act is frequently present. Therefore, under what circumstances will the exception in Section 6(a)(4) be applied? If a distinction is actually to be drawn as to the gravity of the criminal act, then, certainly the felony/misdemeanor difference ought to be considered.
In any case, consider this scenario: The parties voluntarily agree to mediate their case involving a private (non-public entity) fraud lawsuit. During the mediation, the facts of the alleged fraud are discussed privately by the defendant with the mediator and to some extent in general session with the opposing side. The case does not settle. The opposing side now contends that information revealed by the defendant at the mediation shows past and on-going criminal fraud. The opposing side threatens to pursue disclosure of the information as not protectable under the UMA although, otherwise confidential as part of the mediation, if the defendant does not settle the case (for the same or higher number). This example of litigation strategy is neither far-fetched nor improbable. The UMA’s laudable goal of not shielding criminal activity has thus been twisted into a litigation stratagem for private gain rather than employed to protect the public.
Mediation has developed outside and apart from the litigation structure for dispute resolution. In many respects, it is a social phenomonon rather than a revelation of the law. One of the primary reasons mediation is successful is that it returns the decision-making power to those who are directly involved in the dispute. In litigation, the lawyers and courts are the stars; in mediation the disputants are front and center.
In a successfully functioning democratic society, individual citizens understand the importance of taking responsibility for their actions and consequences and the importance of resolving conflicts in the least destructive way possible. In our schools all across the U. S., conflict resolution skills, like peer mediation, are being taught and practiced from kindergarten through high school. In teaching these skills we are building better citizens and a stronger democracy. In my local school system, all three of my children have been exposed to this valuable education and two of them have become peer mediators. On the international scene, great efforts are being applied to use mediation as the preferred to resolving disputes among nations. It is apparent, therefore, that the mediative approach to conflict resolution involves something far greater that debating over the definition of “mediation communication” or what should be excepted from a confidential mediation communication.
If we are to have a UMA, it must not be restricted to the granite-like rigidity of conventional legal theory. It must be sufficiently adaptable to permit the continued growth of mediation as a social process that enhances individual citizens’ understanding and ability to successfully resolve their own problems.
Steven L. Schwartz
President, International Academy of Mediators