From the Disputing Blog of Karl Bayer,
Victoria VanBuren, and Holly Hayes.
As discussed in a previous post, an attempt has been made to explore confidentiality in the Uniform Mediation Act (UMA) and provide an updated list of the states who have implemented the Act, those where legislation is pending, states who have rejected the act and those who have chosen to adopt similar bills.
The Uniform Mediation Act, constructed by committees from the National Conference of Commissioners on Uniform State Laws and the American Bar Association’s Section of Dispute Resolution, was last revised in 2003 to bring uniformity to mediation across the states. A primary purpose of the Act is to provide “a privilege that assures confidentiality in legal proceedings.” The provision of this privilege is intended to promote full disclosure of the issues to the mediator and hopefully ensure a higher level of success for the mediation and greater satisfaction for the participants. Successful mediations are expected to promote greater community confidence in the mediation process resulting in more dispute resolution through mediation.
Section 8 of the UMA states:
SECTION 8. CONFIDENTIALITY. Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.
Matt Brown from the International Institution for Conflict Prevention & Resolution (CPR) summarizes the confidentiality section of the UMA as follows:
The UMA drafters hoped the Act would promote several themes. Besides the uniform practice of mediation, the drafters wanted the UMA to encourage candor. Section Four creates a privilege that provides confidentiality, except for rare exceptions, throughout the mediation process. Confidentiality encourages parties to speak candidly, which is essential to successful mediation. The drafters also tried to “encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process, active party involvement, and informed self-determination by the parties.” These policies and principles should provide higher participant satisfaction levels as well as higher success levels. The drafters also wanted to advance the policy that the authority to make decisions concerning the dispute lies in the hands of the parties, not the mediator. The mediator is just there to facilitate the process. Many of these themes are reflected throughout Sections 4-6 of the UMA.