Most Recent UMA Committee Communication
Dear Steven Steven L. Schwartz, President of IAM:I regret not being able to overcome IAM’s longstanding philosophical opposition to a Uniform Mediation Act.
I can certainly appreciate your organization’s heartfelt desire to keep mediation as far removed from law as possible, and don’t disagree with the spirit of this sentiment. But the reality is that total separation is impossible — as you and I both know. The question then is how to best balance that relationship, and in states where it will be adopted, the UMA does that by:
— providing what will in many states be the first and only general state law that PREVENTS mediation communications from being subject to legal discovery and later court testimony, subject only to very specific, narrow and by all accounts uncontroversial exceptions;
— by providing mediators with a shield to protect against judges seeking information about the mediation to inform later judicial decision-making; and
— by providing parties the comfort and assurance that they may be accompanied by a support person (such as a lawyer, union representative, or rape counselor) and that their mediators will tell them about reasonably known conflicts of interest.
While some states may opt not to enact the UMA given the law, customs and traditions in their states, and that is fine, these protections strike me as more than helpful in the many other states that do not enjoy such luxury.
The UMA is good for mediation, and I have every hope and confidence that the objecting members of your organization will come to see that one day, as so many others have done.
From: Dean Nancy H. Rogers, Reporter, NCCUSL Drafting Committee, and Coordinator, Academic Advisory Faculty
Professor Richard C. Reuben, Reporter, ABA SDR Drafting Committee, Associate Reporter NCCUSL Drafting Committee
Date: November 8, 2001
re: IAM SHOULD TAKE ANOTHER LOOK AT UMA, RECONSIDER OPPOSITION
The International Academy of Mediators on Oct. 31, 2001, passed a resolution opposing the adoption of the Uniform Mediation Act in the states for a variety of reasons.
IAM has been philosophically opposed to the UMA since work began on the Act four years ago, initially contending that the mediation process should be a process that is somehow wholly removed from the law. However attractive that position might be to some mediators, the Drafters proceeded under the basis that no person, process, or institution is above the law, and that society is best served by a law that fairly balances the legitimate needs of the mediation process with equally legitimate rights of the parties and the needs of the rule of law.
The UMA strikes that balance, and was forged thanks to the hard work and spirit of compromise between the Drafting Committees and more than 50 other Official Observers to the UMA, to forge an act that respects both the rights of participants and the legitimate needs of the mediation process. Most mediation, legal and other participants in the process agree that we have succeeded in this regard, and are continuing to support the Act.
On behalf of the Drafting Committees, we are pleased to respond to IAM’s latest set of “deal breaker” issues, and to urge IAM to reconsider its opposition.
1. Parties Do Not Lose Privilege When Mediator Fails to Disclose Conflicts; Only the Mediator
The Uniform Mediation Act provides a broad evidentiary privilege – not only for the parties in a mediation, but, for the first time in most states, to the mediator. It is therefore ironic that IAM opposes the Act primarily because it precludes the unethical mediator from asserting the privilege. In most states, the mediator does not have the privilege to begin with.
In approving the Uniform Mediation Act, the Uniform Law Conference voted overwhelmingly that in fairness this broad grant of privilege must be accompanied by at least a minimum level of accountability: that at a minimum mediators must disclose any conflict of interest to the parties. See UMA, §9. The Conference felt strongly that such disclosure is necessary to assure public confidence in mediation. The provision, Section 9, is consistent with the ethical standards with which mediators already have been broadly embraced by the mediation field. See, e.g., ABA/AAA/SPIDR Guidelines.
Critically, the parties and non-party participants do not lose their privilege and can still block testimony in such situations, a point ignored in IAM’s Resolution. Only the unethical mediator is affected by his or her own conduct, at least by the Act.
The sanction for a violation of this basic ethical obligation, which IAM opposes, is simply to preclude an unethical mediator from being able to assert the mediator’s privilege in a court of law or other subsequent proceeding. Persons with unclean hands are often precluded from asserting legal rights and defenses, and as such, the remedy of preclusion is more appropriately tailored to the harm caused than would be subjecting the mediator to civil liability or criminal sanctions.
The position taken by the Act on the failure to disclose is consistent with the Act’s position on mediator impartiality – strongly urged upon the Conference by the Association for Conflict Resolution — that a mediator who is biased should not receive the protection of a legal privilege. See UMA § 9(d). It is also consistent with the Act’s preclusion of the privilege in other situations of advantage-taking. See UMA § 5.
If the law is to confer a privilege on the mediator, the Drafting Committees agree with the Conference that a requirement of the mediator to disclose conflicts of interest is a minimal expectation.
2. Treatment of Criminal Cases Strikes Healthy Balance
The IAM also objects to an exception to the privilege regarding certain criminal cases, and would prefer instead a rule in which mediation communications could never be introduced in a criminal case to help establish either innocence or guilt.
While mediation confidentiality is important, the Drafting Committees recognized that criminal cases present the most significant demand for evidence given that someone’s liberty or even life might turn on the availability of such evidence. For this reason, states that have considered the question have more typically excluded criminal cases from the scope of any mediation confidentiality protection generally provided. See, e.g., Cal. Ev. Code § 1119.
Rather than taking the extreme position that IAM proposes, the UMA strikes a middle ground, providing what is in effect a rebuttable presumption that mediation communications are confidential in criminal proceedings. This presumption may be overcome by an in camera showing, by either the defense or the prosecution, that the evidence is otherwise unavailable and is sufficiently necessary in the instant case to override the state’s general policy regarding mediation confidentiality. See UMA § 6(b).
The Drafting Committees continue to believe this approach strikes a healthier balance for society, when the difficult competing interests are fairly considered, than the extreme approach suggested by IAM.
3. Right of Accompaniment by Counsel or Support Person is Appropriate in UMA
IAM’s assertion that the UMA’s promise of a right of accompaniment in a mediation is “unnecessary in a mediation confidentiality and privilege statute” simply misunderstands the scope of the UMA. Rather than being an Act limited to privilege and confidentiality, as IAM would prefer, the Uniform Law Commission and the ABA Section of Dispute Resolution have been clear in defining the UMA as a core Act to which amendments regarding specific areas of mediation may from time to time be helpful and appropriate. See Michael B. Getty, Thomas J. Moyer, Roberta Cooper Ramo, Preface, Symposium on Drafting a Uniform/Model Mediation Act, 13 OHIO ST. J. OF DISP. RESOL. 787 (1998).
4. UMA Does Not Impose Qualifications or Duty of Impartiality
IAM is simply incorrect in asserting that the UMA imposes qualifications or duties of impartiality.
On qualifications, the UMA requires only that a mediator disclose qualifications when asked by a party – and the Reporter’s Working Notes make abundantly clear that the UMA does not impose any system of mediator qualification, out of respect for the diversity of mediation practices and contexts. See UMA § 9(d).
On impartiality, at the strong request of the Association for Conflict Resolution, the Drafting Committees included model language regarding mediator impartiality that states may consider as they consider the Act’s uniform provisions. This provision is not part of the Uniform Mediation Act.
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