Uniform Mediation Act: Are We There Yet?

The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association (ABA) Section of Dispute Resolution have been working jointly for more than three years on the development a Uniform Mediation Act. The NCCUSL Drafting Committee plans to finalize this act by May 1, 2001, and submit it to NCCUSL for adoption this August. The NCCUSL will then seek to submit UMA legislation in each state, which if passed would create a Uniform Mediation Act throughout the United States.

Your ACR Official Observers, Gregory Firestone and Dennis Sharp, along with other Official Observers have participated extensively in these Drafting Committee meetings.

On February 11, 2001, at the last scheduled meeting of the two Drafting Committees, a number of significant changes were made to the proposed Uniform Mediation Act (UMA). As a result of the most recent revisions, the UMA is now more in line with the principles outlined last year by AFM and SPIDR and adopted this year by ACR. (See ACR's UMA principles). Although not all concerns raised by ACR have been satisfied, a number of important changes were adopted in February. Below are some highlights.

First and foremost, the newly revised UMA Draft provides that mediation is confidential. Whereas previous drafts of the Act addressed only the admissibility of mediation communications in subsequent court or other adjudicatory forums, the new Act now provides for broad confidentiality in settings other than the court. In other words, the current version of the UMA would codify the generally--held notion that mediation proceedings are confidential, not just in subsequent forums, but to the world generally. To effect this change, the Act now specifically states in UMA Section 5(a) that: "A mediation communication is confidential and, if privileged, is not subject to discovery or admissible in evidence in a proceeding." (Emphasis added.)

Second, in prior versions of the UMA, no privilege existed to protect communications in child protection mediation from being used to prove abuse and neglect in a "proceeding in which a public agency is protecting the interests of an individual protected by law." The Act was revised to provide that while mediation communications concerning abuse and neglect in most mediation conferences would be admissible (to prove abuse neglect in a such a proceeding), the privilege to prevent disclosure of mediation communications to prove abuse and neglect in the above mentioned proceedings would continue to exist when the court referred a child protection case to mediation and the public (child protective) agency participated in the mediation.

Third, while previous versions of the UMA provided that a party could inadvertently waive all communication privileges if he or she made a mediation communication which might be construed as constituting the planning or commission of a crime, the new Act more narrowly defines the circumstances where this could occur. The Act now strikes a better balance between preventing criminals from using mediation to hide the planning of a crime, while still allowing brainstorming where an individual may innocently offer an option which might be technically illegal but which should not cause a total waiver of privilege. The new Section 6(c) in the UMA states that: "A person who intentionally uses or attempts to use a mediation for the primary purpose of planning or concealing a crime or criminal activity, or committing a crime may not assert the privilege ... . " (Emphasis added.)

Finally, the scope of the Act has also been narrowed, so that a "mediation ... conducted by a judicial officer who might make ruling on the case or who is not prohibited by court rule from communicating with an authority" does not fall under this Act. This change was made to clarify that judges or other judicial officers who purport to mediate a litigated case but also have the ability to make a ruling in the matter, or inform another person who has the authority to make a ruling in the case, are not covered by this Act. In other words, their mediation sessions would not be considered confidential.

While we continue to study the new changes, it appears that some of the ways in which the Act still falls short of ACR's concerns includes the following:

1. The Act does not include the concept of impartiality in the definition of mediation or mediator.

2. Given the new inclusion of a confidentiality provision, the Act does not now clearly indicate that threatened harm or violence would be an exception to confidentiality for the purpose of warning a victim or notifying appropriate authorities. While we have been told that the forthcoming UMA Reporters' Notes will indicate that this provision is not intended to prevent persons from warning others who might be in danger, we are concerned that the Act could be interpreted otherwise.

3. The Act still includes a few mediation procedures in an optional section that would legally mandate mediator disclosure of conflicts. These procedures consist of a few provisions that one might expect to find in a standard of professional conduct for mediators. While the provisions themselves are not objectionable, they concern the Official Observers, because these provisions are: a) in many states addressed by court rule, not statute; b) there is no need for uniformity of these provisions at this time; (c) in the case of disclosure requirements, they are general and vague and do not provide for consequences for non-disclosure; and, d) they are woefully incomplete and could give the impression that these are the only ethical obligations to which a mediator must adhere.

4. The Act is still difficult to understand and lacks the simplicity and clarity that we have requested.

The drafters also approved a very significant change that was requested by a number of other Official Observers from the mediation community, including representatives from the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS). This revision prohibits compelling a mediator to testify in proceedings concerning "professional misconduct or malpractice filed against a party, nonparty participant or representative of a party," or involving the proving of "a claim or defense under other law sufficient to reform or avoid liability on a contract arising out of mediation." These modifications were made to keep the mediator out of the potential role of testifying for or against mediation parties in subsequent forums. The primary concern of several mediators and mediation organizations was the potentially chilling effect on the mediation process that could result by allowing mediators to be put in such a role. ACR has posted the latest version of the UMA, and the current version of the Act can be found at http://www.law.upenn.edu/bll/ulc/mediat/med0220.htm.

Although there may be some final changes which might be made during a specially scheduled UMA Drafting Committee meeting or teleconference, it is not likely that the Act will be significantly revised from this point forward. ACR now faces the difficult task of deciding whether to support the Act as is, support it conditionally (i.e., with amendments), to oppose it, or to oppose it unless amended. At the time of this writing, the ACR UMA Committee is currently reviewing the Act and exploring what option constitutes the most effective strategy to recommend to the ACR Board. To help us in this endeavor, please review the draft Act and feel free to send your comments to our two Official Observers, Gregory Firestone (firestoneg@aol.com) and Dennis Sharp (Dennis@SharpResolutions.com). Here's our question to you: "Are we there yet?"

Gregory Firestone and Dennis Sharp previously served as Official Observers on behalf of AFM and SPIDR, respectively. In January 2001, they were appointed by Arnold Schienvold, President of ACR, to jointly serve as Official Observers on behalf of ACR. Carolyn Benne, formerly of CREnet, has joined in the UMA effort, and participates in the ACR UMA Committee discussions along with other ACR UMA Committee members, including: Sharon Press, Peter Adler, Janice Fleischer, and Scott Hughes.