Will This Be Your New Required Mediator’s Opening Statement?
“You have the right to remain silent. I may testify against you later in court. Anything you say to
me in mediation I may repeat in court later.”
Sound ridiculous? Think again. And get involved now.
Why? The ABA and the National Conference of Commissioners on Uniform State Law are
jointly drafting a Uniform Mediation Act. The joint drafting committee is aiming to make this
become law in your state – and in fact in all fifty states, and even to set the mediation rules in
federal courts. The current draft act already passed at first reading before the full national
Uniform Law Conference in July. The Act could provide crucial protections for mediation
confidentiality, but the current draft makes the protections evaporate for numerous reasons.
This draft says you as mediator can be subpoenaed to testify against disputants later in court if
they disagree on their settlement (see sec 2 (c)(8)). Laws in some states currently ensure that
disputants can talk openly with their mediators. They provide that mediators can’t be compelled
to testify against mediation participants later in court. This could change. Numerous requests
from the practitioner community to include this protection in the Uniform Act were rejected by
the Drafting Committee at its last meeting.
Disputants can talk openly with their lawyer, and with their priest.
Do you want them to have the right to be open with you, their mediator?
If you want this, you will want to get actively involved now.
Contact Drafting Committee members. Tell them you agree with the Federal Court of Appeals
which reviewed this issue and decided that “the complete exclusion of mediator testimony is
necessary” for effective mediation (NLRB v Macaluso 618 F.Ed 51 9th Cir. 1980).
Contact the SPIDR Uniform Act Committee Chairs, Dennis Sharp and Peter Adler. Tell them
you want the Uniform Act to include something like California’s law preventing mediators from
being subpoenaed. (This says”…no mediator shall be competent to testify, in any subsequent
civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction
with the prior proceeding, except as to [one]…that could…constitute a crime…or give rise to disqualification…” Calif. Evidence Code section 703.5).
Detailed background and critique, updates, contact information for the Drafting Committee,
your state’s Uniform Law commissioners, and more available at
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