ACR Response to UMA Draft -- Feb. 4, 2002

The Honorable Michael B. Getty, Chair
NCCUSL Uniform Mediation Act Committee
1560 Sandburg Terrace, Suite 1104
Chicago, IL 60610

The Honorable Chief Justice Thomas J. Moyer, Co-Chair
ABA Uniform Mediation Act Committee
Supreme Court of Ohio
30 East Broad Street
Columbus, OH 43215

Ms. Roberta Cooper Ramo, Co-Chair
ABA Uniform Mediation Act Committee
Mondrall Sperling Roehl Harris & Sisk
Sunwest Building, Suite 1000
Albuquerque, NM 87102

Dear Judge Getty, Justice Moyer and Ms. Ramo:

On behalf of the Association for Conflict Resolution (ACR), I am writing this letter to confirm our previous email communication that, at this time, ACR does not endorse or oppose the Uniform Mediation Act (UMA). Because several substantive changes were made to the UMA after August 13, 2001 when we communicated our support, we have found it necessary to revisit our position regarding the UMA.

Our UMA Committee and our Official Observers to the UMA, Gregory Firestone and Dennis Sharp, received the latest version of the black letter UMA and the Reporters Notes on January 9, 2002. This Committee is now reviewing these documents and will submit their findings and recommendations to the ACR Board of Directors as soon as possible. Upon receipt of these findings and recommendations, ACR will determine and adopt a position on the UMA as it is currently written.

In reviewing the modifications to the UMA made after our communication of support on August 13th, we note that substantial changes were made to UMA. For example, in the area of confidentiality the phrase stating that "mediation is confidential and, if privileged …" was dropped leaving the act to provide confidentiality only as a privilege to be asserted in subsequent adjudicatory proceedings unless a state, on its own volition, creates a separate confidentiality provision. As we have stated consistently throughout the drafting process, we believe is very important to state – in the black letter law of the UMA – that mediation is confidential to the world generally; that is, as a matter of law, mediation communications should not be disclosed to anyone outside the mediation without the express permission of all participants or unless specifically permitted by law.

Additionally, while we appreciate the addition of a provision regarding impartiality (Section 9(g) ), we strongly believe that it should not be bracketed. Rather, we believe the notion of impartiality, of the mediator and the process, should simply be part of the UMA. By bracketing the provision, the appearance is given that, in those states that opt not to include the provision, there is no requirement that a mediation must be conducted by an impartial person or in an impartial manner.

We are also concerned with the bracketing of Section 7(a)(5) which gives the option to not protect mediation communications in child and adult protection mediations. As our Official Observers have communicated before, the confidentiality of these communications in child protection mediations has been recommended by the National Council of Juvenile and Family Court judges. We believe the UMA must reflect an appreciation of the different types of disputes mediated and, in this case, believe the Act falls short. We are also concerned that bracketing this language will not provide for uniformity of law as it relates to child and adult protection mediation communications.

Finally, as we have expressed before, while we support the need for mediators to fully disclose any current or past relationships with parties or their representatives, and any other relevant connections with them, we have serious concerns with the requirement as written in the UMA. The provisions in Section 9 are very broad and vague, and do not proscribe any remedies for nondisclosure. Before codifiying disclosure requirements for mediators, we believe it would be wise to more thoroughly discuss these concerns. We are also not convinced that uniform statutory disclosure requirements are needed at this time since, unlike confidentiality, most states have not yet codified mandates in this area.

While we have not had the opportunity to fully review the current version of the UMA and the Reporters Notes that we just recently received, these are four concerns that we wished to convey to you at this time. As soon as we can responsibly respond to both documents, we will convey any other concerns and our overall position to you.

We wish to convey our sincere gratitude again for the opportunity to participate in the UMA process. Should you have any questions about this letter or our review of the UMA, please feel free to contact our Official Observers, Gregory Firestone or Dennis Sharp.

Respectfully,

Arnold Shienvold, Ph.D.
President, ACR