November 2000 Draft of the Uniform Mediation Act

DRAFT


FOR DISCUSSION ONLY




UNIFORM MEDIATION ACT




NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS






November 2000




UNIFORM MEDIATION ACT

With Prefatory Note and Reporter’s Notes



COPYRIGHT © 2000

by


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. Bracketed language in the text [] refers to language that has been offered for discussion purposes only, and has not been accepted into the Draft by the Drafting Committees.


UNIFORM MEDIATION ACT




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

(2) the need to promote candor of parties and mediators through 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) “Court” means [a court of competent jurisdiction in this State].

(2) “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

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

(4) “Mediator” means an individual, of any profession or background, who is appointed by a court or government entity or engaged by parties under an agreement evidenced by a record to conduct a mediation.

(5) “Party” means a person, other than a judicial officer, 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.

(6) “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.

(7) “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.

(8) “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 subsection (b), this [Act] applies to a mediation in which parties agree in a record to mediate or are directed or requested in a record by a court or governmental entity, to participate in a mediation.

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

(1) a dispute arising under or relating to a collective bargaining relationship; or

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


SECTION 5. PRIVILEGE AGAINST DISCLOSURE. In a civil proceeding before a court, an administrative agency, an arbitration panel, or any other tribunal, including juvenile court, or in a criminal misdemeanor proceeding, the following rules apply:

(1) A party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(2) A mediator may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the mediator.

(3) A mediator may refuse to disclose evidence of a mediation communication.

SECTION 6. ADMISSIBILITY; DISCOVERY.

(a) A mediation communication is not subject to discovery or admissible in evidence in a civil proceeding before a court, an administrative agency, an arbitration panel, or any other tribunal, including juvenile court, or in a criminal misdemeanor proceeding, if:

(1) the communication is privileged under Section 5;

(2) the privilege is not waived or precluded under Section 7; and

(3) there is no exception that prevents disclosure of the communication under Section 8.

(b) 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.

SECTION 7. WAIVER AND PRECLUSION OF PRIVILEGE.

(a) A privilege under Section 5 may be waived either in a record or orally during a judicial, administrative, or arbitration proceeding, if it is expressly waived by all parties affected and, in the case of the privilege of a mediator, it is also expressly waived by the mediator.

(b) A party or 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 under Section 5, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

SECTION 8. EXCEPTIONS TO PRIVILEGE.


(a) There is no privilege against disclosure under Sections 5 or 6 for:


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

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

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

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

(5) a mediation communication offered to prove or disprove abuse, 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 under Section 5 or 6 if a court, administrative agency, or arbitration panel 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 the policy favoring the protection of confidentiality under this [Act] 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) the mediation communication evidences a significant threat to public health or safety.

(c) If a mediation communication is not privileged under an exception in subsection (a) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure may 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 9. [DISCLOSURE BY MEDIATOR.]

(a) Before commencing a mediation, an individual who is requested to serve as a mediator shall make an inquiry that is reasonable under the circumstances to determine whether there are any known 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 relationship 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) If requested to do so by a party, a mediator shall disclose the mediator’s qualifications to mediate a dispute.

(c) Except as permitted under Sections 7 and 8, a mediator may not provide a report, assessment, evaluation, recommendation, or finding regarding a mediation to a court, agency, or any other authority that may make a ruling on or an investigation into a dispute that is the subject of the mediation, other than whether the mediation occurred, has terminated, or a settlement was reached and a report of attendance at mediation sessions.


SECTION 10. PARTY’S RIGHT TO DESIGNATE MEDIATION PARTICIPANT. A party has a right to have an attorney or other individual designated by the party attend and participate in the mediation. Any waiver of this right may be rescinded.

[SECTION 11. 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, if:

(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 the petition;

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

(5) no objection is filed by a party to the agreement with the court within [30] days of receipt of the notice.

(b) If the requirements of subsection (a) are satisfied, the court may enter judgment unless a party makes a showing that the settlement was obtained by corruption, fraud, or duress. The judgment may be recorded, docketed, and enforced as any other judgment in a civil action.]

[SECTION 12. EFFECT OF AGREEMENTS; NONWAIVABLE PROVISIONS.

(a) The parties may not agree to:

(1) expand the scope of the [Act] as defined in Section 4;

(2) waive an exception to the mediation privilege provided in Section 8; or

(3) vary the requirements of Sections 9(c) and 10.

(b) The parties and mediator may agree:

(1) pursuant to Section 7, to waive the mediation privilege protections of Sections 5 and 6;and

(2) except as disclosure is required by a court, administrative agency, or arbitration panel under Section 5, 6, 7, or 8 or is required under contract law, to expand the nondisclosure of mediation communications].

(c) The parties and mediator may not agree to expand the privileges in Sections 5 and 6.]

SECTION 13. 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 14. EFFECTIVE DATE. This [Act] takes effect ….

SECTION 15. REPEALS. The following acts and parts of acts are hereby repealed:


DRAFT


FOR DISCUSSION ONLY




UNIFORM MEDIATION ACT




NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS






November 2000




UNIFORM MEDIATION ACT

With Prefatory Note and Reporter’s Notes



COPYRIGHT © 2000

by


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. Bracketed language in the text [] refers to language that has been offered for discussion purposes only, and has not been accepted into the Draft by the Drafting Committees.

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

DRAFTING COMMITTEE ON UNIFORM MEDIATION ACT



THE HON. MICHAEL B. GETTY (Ret.), 1560 Sandburg Terrace, Suite 1104, Chicago, IL 60610, Chair


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


JOSE FELICIANO, 3200 National City Center, 1900 E. 9th Street, Cleveland, OH 44114-3485, American Bar Association Member

ROGER C. HENDERSON, University of Arizona, James E. Rogers College of Law, Mountain and Speedway Streets, Tucson, AZ 85721, Committee on Style Liaison


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


RICHARD C. REUBEN, University of Missouri – Columbia School of Law, Hulston Hall, Columbia, MO 65211; Associate National Conference Reporter

NANCY H. ROGERS, Ohio State University, College of Law and 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 2082, Sacramento, CA 95814


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


THE HON. JOAN ZELDON, D.C. Superior Court, 500 Indiana Ave., Washington, DC 20001


EX OFFICIO

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


LEON M. MCCORKLE, JR., P.O. Box 387, Dublin, OH 43017-0387, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR


ROBERTA COOPER RAMO, Sunwest Building, Suite 1000, 500 W. 4th Street, NW, Albuquerque, NM 87102


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, Supreme Court of Ohio, 30 E. Broad Street, Columbus, OH 43215

MS. ROBERTA COOPER RAMO, Co-Chair, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Sunwest Bldg., Suite. 1000, Albuquerque, NM 87102

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

THE HON. CHIEF JUDGE ANNICE M. WAGNER, Court of Appeals of the District of Columbia, 500 Indiana Ave., NW, Washington, DC 20001


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


JOSE FELICIANO, Baker & Hostetler, 3200 National City Center, 1900 East 9th St., Cleveland, OH 44114

RICHARD C. REUBEN, University of Missouri – Columbia School of Law, Hulston Hall, Columbia, MO 65211, Reporter


NANCY H. ROGERS, Ohio State University, College of Lawand 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

Uniform Mediation Act

Section 1. Title

Section 2. Application and Construction

Section 3. Definitions

Section 4. Scope

Section 5. Privilege Against Disclosure

Section 6. Admissibility; Discovery

Section 7. Waiver and Preclusion of Privilege

Section 8. Exceptions to Privilege

Section 9. [Disclosure by Mediator]

Section 10. Party’s Right to Designate Mediation Participant

[Section 11. Optional Summary Enforcement of Mediated Settlement Agreements]

[Section 12.Nonwaivable Provisions; Effect of Agreements]

Section 13. Severability Clause

Section 14. Effective Date

Section 15. Repeals

Prefatory Note

During the last thirty years the use of mediation has expanded beyond its century-long home in collective bargaining to become an integral and growing part of the processes of dispute resolution in the courts, public agencies, community dispute resolution programs, and the commercial and business communities, as well as among private parties engaged in conflict.

Public policy strongly supports this development. Mediation fosters the early resolution of disputes. The mediator assists the parties in negotiating a settlement that is specifically tailored to their needs and interests. The parties’ participation in the process and control over the result contributes to greater satisfaction on their part. See comments, Section 4. Increased use of mediation also diminishes the unnecessary expenditure of personal and institutional resources for conflict resolution, and promotes a more civil society. For this reason, hundreds of state statutes establish mediation programs in a wide variety of contexts and encourage their use. Many states have also created state offices to encourage greater use of mediation. See, e.g., See Rogers & McEwen, supra, at app. B; see also Ark. Code Ann. § 16-7-101, et seq. (1995); Haw. Rev. Stat. § 613-1, et seq .(1989); Kan. Stat. Ann. § 5-501, et seq. (1996); Mass. Gen. Laws ch. 7, § 51 (1998); Neb. Rev. Stat. § 25-2902, et seq. (1991); N.J. Stat. Ann. § 52:27E-73 (1994); Ohio Rev. Code Ann. § 179.01, et seq. (West 1995); Okla. Stat. tit. 12, § 1801, et seq. (1983); Or. Rev. Stat. § 36.105, et seq. (1997); W. Va. Code § 55-15-1, et seq. (1990).


1. Role of law.

The law has a limited but important role to play in encouraging the effective use of mediation and maintaining its integrity, as well as the appropriate relationship with the justice system. In particular, the law has the unique capacity to assure that the reasonable expectations of participants regarding the confidentiality of the mediation process are met, rather than frustrated. The primary focus of this Act is confidentiality. Because the privilege makes it more difficult to offer evidence to challenge the agreement, the Drafters viewed the issue of confidentiality as tied to provisions that will help increase the likelihood that the mediation process will be conducted with integrity and that the process will be fundamentally fair on the ground that the parties’ knowing consent will be preserved. See Joseph B. Stulberg, Fairness and Mediation, 13 Ohio St. J. on Disp. Resol. 909 (1998). In other words, without these assurances, they did not think it wise to expand confidentiality. In some limited ways, the law can also encourage the use of mediation as part of the policy to promote the private resolution of disputes through informed self-determination. See discussion in Section 2; see also Nancy H. Rogers & Craig A. McEwen, Employing the Law to Increase the Use of Mediation and to Encourage Direct and Early Negotiations, 13 Ohio St. J. on Disp. Resol. 831 (1998); Denburg v. Paker Chapin Flattau & Klimpl, 624 N.E.2d 995, 1000 (N.Y. 1993).

The provisions in this Act reflect the intent of the Drafters to fulfill this fundamental obligation, and are generally consistent with policies of the states. Candor during mediation is encouraged by maintaining the parties’ and mediators’ expectations regarding confidentiality of mediation communications. See Sections 5-9. Self-determination is encouraged by provisions that limit the potential for coercion of the parties to accept settlements, see Section 9(c), and that allows parties to have counsel or other support persons present during the mediation session. See Section 10. The Act promotes the integrity of the mediation process by requiring the mediator to disclose conflicts of interest and be candid about qualifications. See Section 9(a), (b). Finally, the Act enhances the attractiveness of mediation by providing for the possibility of expediting enforcement of mediated agreements. See Section 11.

While the law has the capacity to promote the use and effectiveness of mediation, it also has the very real potential to undermine the use of mediation. One of the virtues of mediation is the freedom of the process from the constraints of the complex web of laws that surround the litigation and administrative processes, a virtue that should be respected. For this reason, the Act in many respects is a default act. For example, the parties may still set by the ground rules of their mediation, including their agreement about what use will be made of mediation communications and agreements outside of legal proceedings. In addition, the provisions in the Act may be varied by party agreement in the ways set forth in Section 12.

This Act is designed to simplify rather than complicate the law. Currently, legal rules affecting mediation can be found in more than 2,500 statutes. On average, for example, each state has five mediation confidentiality statutes, each applying in a different context. Many of these statutes can be replaced by the Act, which applies a generic approach to topics covered in varying ways by a number of specific statutes currently scattered within substantive provisions.


2. Importance of uniformity.

Existing statutory provisions frequently vary not only within a state but also by state in several different and meaningful respects. Confidentiality provides an important example. Virtually all states have adopted some form of confidentiality protection, reflecting a strong public policy favoring confidentiality in mediation. However, this policy is effected through approximately 250 different state statutes. Common differences among these statutes include the definition of mediation, subject matter of the dispute, scope of protection, exceptions, and the context of the mediation that comes within the statute (such as whether the mediation takes place in a court or community program or a private setting).

Uniformity of the law encourages effective use of mediation in a number of ways. First, uniformity is a necessary predicate to predictability if there is any potential that a statement made in mediation in one state may be sought in litigation or administrative processes in another state. The law of conflict of law has failed to provide predictability. See, e.g., U.S. v. Gullo, 672 F.Supp. 99 (W.D.N.Y. 1987) (holding that New York mediation-arbitration privilege applies in federal court grand jury proceeding); Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. App. 1992) (holding that federal Jones Act case applies in state court because Florida mediation privilege law is procedural). Parties to a mediation cannot always know where the later litigation or administrative process may occur. Without uniformity, there can be no firm assurance of confidentiality in any mediation.

Similarly, a second benefit of uniformity relates to cross-jurisdictional mediation. Mediation sessions are increasingly conducted by conference calls between mediators and parties in different states and even over the Internet. Because it is unclear which state’s laws apply, the parties cannot be assured of the reach of confidentiality.

Third, absent uniformity, a party trying to decide whether to sign an agreement to mediate may not know where the mediation will occur and therefore whether the law will ensure against conflict of interest or the right to bring counsel or support person. As electronic communication grows, those taking part in telephonic and electronic mediation across states will not know what law affects the conduct of that session.

Finally, uniformity relates to simplicity. Mediators and parties who do not have meaningful familiarity with the law or legal research face a more formidable task in understanding multiple confidentiality statutes that vary by and within relevant states than they would in understanding a uniform act. Mediators and parties often travel to different states for the mediation sessions. If they do not understand these legal protections, they may react in a guarded way, thus reducing the candor these provisions are designed to promote, or they may unnecessarily expend resources to have the necessary legal research conducted.


3. Ripeness of a uniform law.

                        author

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