ACR
Response to UMA Draft -- July 24, 2001
ACR Official Response to "Draft
for Approval" Uniform Mediation Act (UMA)
July 24, 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
ABA Uniform Mediation Act Committee
Supreme Court of Ohio
30 E. 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:
This letter will serve as the Association for
Conflict Resolution's official response to the
"Draft for Approval" Uniform Mediation
Act (UMA) for the August 10 – 17, 2001 National
Conference of Commissioners on Uniform State Laws
(NCCUSL) annual meeting. The Association for Conflict
Resolution (ACR) is the nation's largest conflict
resolution membership organization. ACR represents
over 7000 members from all facets of the mediation
and ADR field, including individual practitioners
(mediators and arbitrators), mediation organizations,
educators, and administrators.
We have reviewed the current draft of the UMA
according to the 11 guiding principles previously
adopted by ACR (provided to the UMA drafters previously
by AFM, SPIDR and ACR, and again with this letter).
While ACR finds many positive elements in the
UMA, we still have several concerns regarding
the current UMA draft. These objections remain
largely the same as we articulated to you in our
official response dated March 22, 2001. At this
point, ACR would support the UMA, provided that
the following concerns are satisfactorily addressed:
1. IMPARTIALITY – As we
have maintained throughout the drafting process,
the principle that the mediator is impartial,
and that he or she must conduct the mediation
in an unbiased manner, is paramount to the credibility,
integrity, and effectiveness of the mediation
process. This is the reason that most states that
have enacted mediation statutes have included
the concepts of impartiality and/or neutrality
in their acts. In earlier versions of the UMA,
the Act contained the notion that the mediator
must be an impartial individual. Over our objection,
this was dropped from the UMA.
Page 1 of the UMA Reporter's Notes states, "The
primary focus of this Act is a limited one –
to provide a privilege that assures confidentiality
in legal proceedings. Because the privilege makes
it more difficult to offer evidence to challenge
the mediated settlement agreement, the drafters
viewed the issue of confidentiality as tied to
provisions that will help increase the likelihood
that the process will be fair." For this
reason, the Reporters go on to state, "The
primary guarantees of fairness within mediation
are integrity of the process and informed self-determination."
(see page 12.) We believe that providing that
a mediator must be impartial best assures that
the "integrity of the process" (one
of the "primary guarantees" set out
in the Reporter's Notes to justify confidentiality)
will be maintained.
If impartiality is omitted from the definition
of "mediator", or not otherwise assured
in other definitions or sections of the UMA, ACR
fears that:
a. Some state statutes may inadvertently provide
for or allow the referral of cases to a mediator
who is not impartial (one of the party's attorneys,
for example) because, in many states, the UMA
will be inserted in a larger set of non-conflicting
mediation statutory provisions. These other
provisions currently address issues such as
court referral to mediation, mediator immunity,
etc., and were typically built upon existing
statutory definitions of the mediator as being
impartial or neutral.
b. Mediators might not believe they need to
be impartial.
c. Parties might not understand that they have
a right to an impartial mediator and impartial
process.
Inclusion of impartiality in the definition of
mediator helps to further the integrity of the
process and to assure that all other provisions
in the UMA build upon the obligation of the mediator
to be impartial. Therefore, ACR strongly recommends
that the following modification be made to the
definition of "mediator":
Proposed Section 3(3) "Mediator" means
an impartial individual, of any profession or
background, who conducts a mediation. (Requested
modification underlined.)
Additionally, to address the concern raised by
some drafters about the potential loss of the
confidentiality privilege by a party in mediation
should a mediator later be determined by a court
to have been partial, or to have failed to acted
impartially, we recommend that the following subsection
be added to the act:
Proposed Section 5(d) The protections of this
act shall continue to apply even if a mediator
is found to be partial or failed to act impartially.
(Requested revision underlined.)
This modification will help assure parties to
a mediation that their expectations of confidentiality
will not be jeopardized by the actions or inaction
(such as nondisclosure of conflicts) by the mediator.
We are aware that a concern has been raised that
including impartiality in the definition will
create potential liability for mediators. However,
in states where such provisions exist, this does
not appear to be the case. In addition, we believe
this concern can be adequately addressed by mediators
providing appropriate conflict of interest disclosures
and maintaining liability insurance.
We have been advised that the UMA Drafting Committee
Chair and Reporters are considering adding reference
to impartiality in the Application and Construction
Section in Section 2(3). We would support the
underlined addition below.
Proposed Section 2(3): the policy that the decision-making
authority in the mediation process rests with
the parties, assisted by an impartial mediator;
In addition, Reporter Nancy Rogers has indicated
a willingness to recommend a legislative note
in the Definitions Section that would state the
following:
Proposed Section 2 Legislative Note: Legislators
should note that if definitions are used for other
purposes than in this Act, such as for immunity
of mediators or referral to mediation by a court
or public agency, then a provision should be added
applicable to these other purposes that defines
a mediator as being impartial. Impartiality is
a very important way to assure the integrity of
the process. If the mediator is defined as an
impartial person, then another provision should
be added that states that impartiality means freedom
from favoritism or bias, either by word or by
action, and a commitment to serve all parties.
In the absence of the inclusion of the definition
of impartiality in the Act, we would recommend
the inclusion of the above provision to at least
establish the need to include impartiality in
the definition of mediation as it pertains to
other aspects of a mediation statute. Although
we understand that including "impartial"
in the definition of mediation and adding the
second provision we recommend above may be inconsistent
with NCCUSL style rules, we cannot overstate the
importance of including impartiality in the definition.
2. CONFIDENTIALITY - At the
final UMA Drafting Committee meeting, the following
Legislative Note was approved by the drafters:
Section 5. Legislative Note: The [Act] does not
supercede existing state statutes that make mediators
incompetent to testify, provide for confidentiality
of mediation, or that provide for costs and attorney
fees to mediators who are wrongfully subpoenaed.
See e.g. Cal. Ed. Code Sec. 703.5 (West 1994)].
We note that the italicized language "provide
for confidentiality of mediation" has been
removed from the current version of the UMA. It
is very important to ACR that this legislative
note remain in the UMA as it was adopted by the
UMA Drafting Committee in February, including
the italicized language cited above, so that it
is clear to state legislatures that they may retain
confidentiality protections that go beyond the
UMA. Therefore, we request that you reinsert the
omitted phrase and rewrite the current draft as
follows:
Proposed Section 5. Legislative Note: The [Act]
does not supercede existing state statutes that
make mediators incompetent to testify, provide
for confidentiality of mediation, or that provide
for costs and attorney fees to mediators who are
wrongfully subpoenaed. See e.g. Cal. Ed. Code
Sec. 703.5 (West 1994)]. (Modifications requested
are underlined.)
It is also crucial that subsection 5 (a) remain
as revised during the New Orleans drafting meeting
to read, "A mediation communication is confidential
and, if privileged, is not subject to discovery
or admissible in evidence in a proceeding."
It is equally important that no legislative note
or comments to the UMA in any way indicate that
the beginning of the subsection "A mediation
communication is confidential" is intended
to be inoperative – i.e., that the language
applies only to the privilege.
Many state mediation statutes currently contain
a similar statement about the general nature of
confidentiality of the mediation process. We believe
strongly that full confidentiality is vital to
the efficacy of the mediation process, and would
not support any language in the black letter UMA,
or in any legislative notes or other official
comments, that would state otherwise.
While we strongly advocate the importance of
confidentiality protections for mediation, we
also support a legislative note or Reporter's
Note that states that an exception to confidentiality
exists for the purpose of warning a potential
victim or notifying appropriate authorities when
threatened harm exists, and also for state mandated
report of abuse, neglect, abandonment, and/or
exploitation of a designated vulnerable person.
3. REPORTS TO JUDGES We are
very concerned about the effect of Section 8(c)
as it relates to excluding "judicial officers"
from the application of Section 8 (a). Section
8 (a) states, "A mediator may not make a
report, assessment, evaluation, recommendation,
finding, or other communication regarding a mediation
to a court, agency, or other authority that may
make a ruling on the dispute that is the subject
of the mediation ... "
As written, under Section 8 (c) anyone whom a
court deems to be a "judicial officer"
would not be prohibited from making a report about
what occurred during mediation, giving an assessment
about the merits of matter mediated, or making
a recommendation to the court. Clearly, when this
occurs, the very purpose of the Act is defeated
-- to provide mediation participants the opportunity
to be candid by assuring them that their mediation
communications will be kept confidential.
The reason Section 8(a) was included in the UMA
was to ensure confidentiality and to make sure
that mediators cannot coerce settlement agreements
from parties by threatening to write adverse recommendations
and reports to judges.
Section 4 (b)(4) attempts to address this "loophole"
by stating, "This [Act] does not apply to
a mediation conducted by a judicial officer who
might make a ruling on the case or who is not
prohibited by court rule from communicating with
a court ... as provided by Section 8 (a)."
Unfortunately, this attempt fails to address the
vital need to prohibit mediators whom the court
deems to be "judicial officers" from
making such reports, recommendations, etc.
Should a court in any state that adopts the UMA,
as written, determine that a mediator in a court-connected
mediation is a "judicial officer," nothing
would prohibit these mediators from giving their
opinions, evaluations or recommendations to a
court; nor would a court be prohibited from considering
them.
We can envision the very real possibility --
or even probability -- that courts in some states
may interpret any the following persons, among
others, who conduct court-connected mediations
to be "judicial officers": court-appointed
mediators; members of court mediation rosters;
special masters; referees; and court personnel,
including judges, magistrates, and court-employed
mediators. We strongly believe that none of these
mediators should be excluded from the prohibitions
provided in Section 8 (a).
While we are sensitive to the drafters' concerns
about constitutional separation of powers, the
ambiguity created by Section 8 (c) should not
remain in the UMA. We believe the best way to
accomplish closing the loophole is by simply deleting
the words "(a)" and "and"
from Section 8 (c) so that the prohibition will
apply to all mediators, including those deemed
to be "judicial officers." This suggested
revision would read as follows:
Proposed Section 8(c): [Subsection[s] (a) [and
(d) through (f)] do[es] not apply to an individual
acting as a judicial officer.] (Modifications
requested indicated by strikethrough lines for
deletions and underline for additions.)
This recommended revision squares precisely with
the California Supreme Court's 6 - 0 decision
on July 9, 2001 (Foxgate Homeowners' Association
v. Bramalea, Opinion #S087319) to uphold virtually
the same provision contained in the California
mediation confidentiality statute (California
Evidence Code 1115, et. seq.).
Should the drafters and NCCUSL be unwilling to
make this requested modification, we recommend
that, at a minimum, the term "judicial officers"
be changed to "judges" in Section (c).
This narrowing of the term would at least send
the clear message to courts that no court-connected
mediators, other than judges, are permitted to
make reports, recommendations, etc. to a judge
who might make a ruling on the case. We are open
to other ways to address this concern as well.
This alternative revision would read as follows:
Alternative Proposed Section 8(c): Subsection[s]
(a) [and (d) through (f) do(es)] not apply to
an individual acting as a judicial officer a sitting
judge. (Strikethrough indicates deletion and underline
indicates proposed addition. Note other changes
to 8(c) have been proposed above as our first
preference.)
4. MINORS/PEER MEDIATION –
As we articulated in our March 22 response, (and
as was included in the April 23, 2001 draft of
the UMA), we believe that the exclusion of "peer
mediation" programs should not be linked
to the age of the students. The current draft
language, which exempts from the Act "mediation
involving parties who are all minors which is
conducted under the auspices of a primary or secondary
school or correctional institution …"
would result in confusing and unpredictable application.
Specifically, because many students reach the
age of majority while in secondary school, mediators
would be required to obtain the age of the students
(or residents of correctional institutions) appearing
for mediation in order to determine if the Act
applies.
Therefore, we recommend that you adopt the following
revision, which was included in the April 23,
2001 draft UMA, and that was widely circulated
and discussed during the plenary session at the
ABA Section on Dispute Resolution conference shortly
thereafter:
Proposed Section 4(b)(3) conducted under the
auspices of a primary or secondary school that
involves a student of that school or under the
auspices of a correctional institution for youths
that involves a resident of that institution.
5. NOTICE WHEN PRIVILEGE HAS BEEN REMOVED
– The drafters, at the final drafting meeting,
adopted a provision that provided that all participants,
not just named parties, had a right to know whether
their statements were privileged when they spoke
in mediation. Since that final meeting, the draft
was changed and now undercuts this right by allowing
the named parties to secretly agree to remove
the privileges from a particular session without
notifying other participants. After discussions
with the Chair and Reporters, it is our understanding
that there is no objection to the final sentence
being restored so that the subsection would read:
Proposed Section 4(c) If the parties agree in
advance that all or part of the mediation is not
privileged, the privileges under Sections 5 through
7 do not apply to the mediation or part agreed
upon. The agreement must be in a signed record
or reflected in the record of a proceeding. However,
Sections 5 through 7 still apply to a mediation
communication made by a person who has not received
actual notice of the agreement before the communication
is made. (Modification requested underlined.)
6. PRECLUSION OF PRIVILEGE –
It is our understanding that the words "for
the primary purpose" in Section 6 (c) were
taken out of the Act after the final UMA drafting
committee meeting. We believe that this modification
is substantive and greatly lowers the threshold
upon which one can lose his or her privilege to
all mediation communications. We request that
the words be reinserted, or other language be
included, that more appropriately raises the threshold
for loss of the privilege for all mediation communications.
We believe the reason the Committee adopted the
phrase "for the primary purpose" in
Section 6(c) at the last meeting was to assure
that innocent brainstorming of potential resolution
ideas would not be curtailed by the fear of loss
of all privileges. We are concerned that the lower
threshold for loss of a party's entire privilege
will serve to inhibit brainstorming (a fundamental
part of problem solving) and serve to reduce the
active participation of parties for fear they
might inadvertently waive all privileges. We are
also concerned that because there is little difference
between Section 6(c) and 7(a)(4), the courts will
have difficulty determining when the entire privilege
is lost and when the privilege is lost only for
a given mediation communication.
Therefore, we recommend that Section 6 (c) be
revised as it was approved during the last UMA
drafting meeting to read as described below, or
that the threshold for loss of the entire privilege
be raised in some other meaningful manner:
Proposed Section 6(c) 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 under Section 5. (Replace subsection
as underlined.)
7. SUMMARY ENFORCEMENT PROCEEDINGS –
We strongly support the UMA Drafting Committee's
recommendation that optional Section 11 pertaining
to the summary enforcement of mediated settlement
agreements not be adopted. We believe there is
no need for uniformity of summary enforcement.
If adopted, however, it needs more thoughtful
consideration.
8. APPLICATION AND CONSTRUCTION
– While ACR understands that NCCUSL does
not usually include a section on Application and
Construction, we strongly support the need for
such a provision in this Act. The language set
out in proposed Section 2 makes the purpose of
the UMA clear and provides important guidance
to state courts and legislatures regarding the
critical principles of mediation as they apply
and construe this act.
In addition to the eight issues listed above,
ACR continues to believe that optional subsections
8 (d) through (f) should be deleted from the UMA.
While we fully support the notion that mediators
should disclose all conflicts of interest -- either
actual conflicts or ones that may be perceived
by parties to be conflicts -- we believe that
the currently proposed provisions are inadequate
and that it is premature to mandate such disclosures
in the UMA. We believe that such regulation should
be left for various states to develop before uniformity
of these requirements is considered.
Should the UMA be revised to address the concerns
we have articulated, and no other substantive
changes are made, ACR will support the Act. If
the Act does not reflect these concerns, we intend
to pursue revisions to meet these concerns when
the Act is presented during the NCCUSL Legislative
Session, to the ABA, and, if adopted by NCCUSL,
during consideration by individual state legislatures.
We again wish to convey our appreciation for
the opportunity to share our views and concerns
with you through our Official Observers, Dennis
Sharp, Esq. and Gregory Firestone, Ph.D., during
the creation of the UMA over the past three years.
As we have in the past, we remain committed to
working with you to create language that meets
the concerns of the mediation community, UMA drafters,
attorneys, courts, and any others who may be involved
in the mediation process.
Gregory Firestone will be attending the NCCUSL
annual meeting in August on behalf of the Association
for Conflict Resolution and is authorized to speak
on our behalf. During the meeting, designated
ACR members will be available for consultation
should any revisions not outlined in this response
be considered by the UMA Drafting Committee and
in an effort to assist you in finalizing a Uniform
Mediation Act that best addresses the needs of
all involved and can be endorsed by the Association
for Conflict Resolution.
Respectfully,
Arnold Shienvold, Ph.D.
President, Association for Conflict Resolution
cc: NCCUSL and ABA UMA Drafting Committee Members
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