ACR
Response to February 20 Draft UMA--March 22, 2001
March 22, 2001
The Honorable Michael B. Getty, Chair
NCCUSL Uniform Mediation Act Committee
1560 Sandburg Terrace, #1104
Chicago, IL 60610
The Honorable 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
Sunwest Building, Suite 1000
Albuquerque, NM 87102
Dear Judge Getty, Justice Moyer, and Ms. Ramo:
The Association for Conflict Resolution (ACR)
is sending this response to you and, by copy of
this electronic transmission, to Nancy Rogers,
Richard Reuben and Emily Haynes. We request that
Ms. Haynes forward this response to the NCCUSL
and ABA Uniform Mediation Act Drafting Committees.
We again wish to express our sincere gratitude
for including us in the process of creating a
proposed Uniform Mediation Act (UMA). This email
cover letter and the attached
document serve as our response to the February
20, 2001 draft of the UMA.
We have attached the February
20 draft UMA with revisions requested by us
highlighted in bold. We have provided our requested
modifications in this format to make it easier
to follow our specific recommendations for changes.
In addition to the specific modifications set
out in the attached draft UMA, we continue to
have serious concerns about the proposed breadth
of the UMA. For example, we conveyed this concern
specifically during the recent UMA Drafting Committees'
meeting when the Act was expanded to include felony
criminal matters within its scope. It is our impression
that significant participants in these mediations,
particularly prosecution and defense counsel,
have had limited opportunity to review and digest
the proposed UMA. Because of this limited review,
we are very concerned about the UMA's enactability
in the state legislatures.
Similarly, we are concerned about how this broad
Act will impact dispute resolution processes involving
Native American reservations, schools, various
government agencies, correctional institutions,
ombudspersons, and several others not found in
the general civil dispute arena. At a minimum,
we respectfully request that the Drafting Committees
insure that they have received adequate feedback
from appropriate representatives of these groups
to make sure that the UMA will sufficiently address
their needs and concerns. If the Act does not
adequately address their concerns and cannot be
corrected in the short time remaining, then we
respectfully request that the Act be narrowed.
As we have consistently stated, we believe that
a Uniform Mediation Act should only contain what
is necessary to be uniform at this point in time.
As mediation law (through common law and state
statutes) develops more around the country, the
UMA should grow from its initial core to include
other areas that require uniformity among the
states.
As to the specific recommended revisions set
out in the black letter proposed UMA that we have
attached, set out below are a summary of our reasons
for making the recommendations:
SECTION 2. While we have made no specific recommendations
for revisions to this section, we still strongly
believe that this section is very important and
should not be dropped. We believe that it serves
the significant purpose of educating the legislatures
and courts about the appropriate concept of mediation
as well as sets the proper tone for applying and
construing the Act.
SECTION 3. We believe it is very important to
include in the definitions the notion that a mediator
is an impartial individual. Many states currently
set out this important requirement in their mediation
statutes and we think such a pronouncement should
not be lost in enacting this Act. Please note
that we have also recommended that at new subsection
5(d) be added to assure that "the protections
of this act shall continue to apply even if a
mediator is found to be partial or to have failed
to act impartially". This subsection would
permit mediation participants to maintain their
rights to confidentiality or to invoke their privileges
when they reasonably believed that the mediator
was impartial but later was found not to be.
SECTION 4. We are recommending that subsection
4(b)(2) be changed as reflected in our attachment
to insure that students who are eighteen (18)
years and older will be included in the definition.
It is also our belief that the Act should not
apply to any school-connected mediation programs
since it is unnecessary that these programs be
governed by a uniform act.
We also recommend that subsection 4(b)(3) be
deleted and that a new subsection 4(c) be created
that states that, "A proceeding conducted
by a judicial officer who might make or inform
a ruling or order in the matter shall not be considered
a mediation under this Act." We strongly
believe that where an individual has the ability
to make a ruling or order in the matter in dispute,
or has the ability to inform one who can make
such a ruling, the process this individual is
conducting simply should not be considered mediation
under this Act.
We further believe that should a court or other
entity call such a process "mediation",
they should be required to notify participants
that the process is not covered by the protections
of this Act. Because of concerns raised in the
Drafting Committees' meetings regarding separation
of powers (between Legislature and the Judiciary),
we have not created language regarding this requirement.
It is our hope that we in the mediation community
and informed court personnel can help educate
courts and other entities about this very important
need to inform participants in their annexed processes.
SECTION 5. In our attached recommended changes
to the UMA we have inserted the Legislative Note
that was approved by the UMA Drafting Committees
at the New Orleans meeting. We believe that this
legislative note is very important to be maintained
in this Act to conspicuously note that states
that have additional confidentiality protections
beyond what is contained in this Act can continue
to have them and still be considered "uniform".
Further, we very strongly believe that the phrase
at the beginning of this section that, "A
mediation communication is confidential …",
applies to all participants in mediation, not
just to the mediator. We respectfully request
that this notion be included in the Reporter's
Notes, Comments attached to the UMA, or a Legislative
Note to indicate that this phrase applies to all
individuals participating in the mediation.
SECTION 6. We request the changes here in subsections
6(a)(1) and (2), and in 6(d) for clarity purposes.
SECTION 7. Likewise, we request the changes in
7(4) and (5) for clarity purposes.
SECTION 8. We strongly believe that subsection
(a) should apply to all mediators, including judicial
officers in their legal capacity. We understand
the concerns regarding separation of powers but
believe this is a crucial requirement for mediations
conducted under this Act. We have seen numerous
cases of abuse of the process by court-appointed
special masters and evaluators who are labeled
"mediators". For this reason we believe
that judicial officers should not be exempt from
subsection 8(a).
PROPOSED NEW SECTION – EXCEPTIONS TO CONFIDENTIALITY.
We are very concerned that the UMA, as currently
written, may provide some confusion as to what
exceptions to confidentiality may exist. In the
interest of clarity, protecting individuals at
risk, and complying with mandatory reporting laws
and requirements to report ethical violations,
we are proposing the attached language to address
exceptions to confidentiality. This section further
clarifies that any exceptions to confidentiality
would not affect the admissibility or privileged
nature of the mediation communication.
Our Official Observers, Dennis Sharp and Gregory
Firestone, are available to answer any questions
and will continue to work with the UMA Drafting
Committees with the goal of creating a UMA that
ACR can support and that will enhance the practice
of mediation throughout the U.S. We request that
they be invited to participate in any Drafting
Committee meetings or teleconference calls that
may take place in the future.
Respectfully,
Arnold Shienvold, Ph. D.
President, Association for Conflict Resolution
cc: Nancy Rogers
Richard Reuben
Emily Haynes
ACR Board of Directors
ACR UMA Committee
Official Observers
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