Report in Support of IAM Resolution Opposing Adoption of UMA
Robert A. Creo
Resolution of the International Academy of Mediators Opposing Adoption of the Uniform Mediation Act
On October 31, 2001, the Board of Governors of the International Academy of Mediators (IAM) passed the following Resolution: "The International Academy of Mediators opposes adoption of the Uniform Mediation Act as approved and recommended for enactment in all the states by the National Conference of Commissioners of Uniform State Laws (NCCUSL) in August 2001."
REPORT IN SUPPORT OF THE RESOLUTION Section 9, the Section 2(2) definition of “mediation communication” and the Section 6(b)(1) exception for criminal proceedings are unacceptable.. The IAM also does not believe that Section 10 on representation is necessary in a mediation confidentiality and privilege statute.
Section 9 links the violation of “ethical” rules or standards of conduct/practice by a mediator to voiding the evidentiary privilege in underlying civil litigation between the parties. This jeopardizes the parties’ expectations of mediation confidentiality. Mediators should, and in fact do, routinely make disclosures consistent with the intent and language of the UMA. A mediator’s failure to disclosure, however, should not have the effect of vitiating the privilege protecting the confidentiality of mediation communications. As drafted, communications (offers of compromise; hearsay; mediator to impeach witnesses, etc) expected to be confidential now become discoverable or admissible as evidence. The integrity and utility of the mediation process depends upon the fundamental principle that mediation does not “create” new evidence nor preclude use of otherwise existing or discoverable evidence.
The UMA erroneously treats mediators who do not make decisions as arbitrators who issue final and binding decisions. It also confuses the basic difference between mediation and arbitration. In mediation, the parties maintain control of the decision-making process and the result. If a case does not settle in mediation, there is little, if any, harm to the litigants by a failure to disclose. In arbitration, the decision-maker is not the party and a failure to disclose could impact the very decision being rendered by the third party arbitrator. If a mediated settlement is reached and a party seeks to overturn the settlement based upon a non-disclosure causing an unfair process, the court may void the settlement agreement and the underlying litigation continues but the evidence in the case remains unaffected.
The UMA is also impractical in its application. How and by whom is it to be determined when “a person [that] violates subsection (a), (b), or (c)” and when should it be raised? There are many possibilities, for example: 1) During a trial or via pre-trial motions in the underlying action. 2) By declaration of one, some or all the parties, the mediator or mediation service provider. 3) In a separate judicial action (a right created by the UMA) naming a mediator as defendant so that discovery can be conducted on the mediator and/or staff in the new action to ultimately be used in the underlying case. 4) To corroborate or impeach the testimony of the mediator or other witnesses to show a violation. It is also unclear to what extent others may be called to testify once a Section 9 violation has been determined.
The UMA imposes obligations involving concepts of “impartiality” and “qualifications” of a mediator without any definition an guidance. It is not possible to determine what may constitute an adequate Section 9 disclosure. The UMA punishes the parties for inadvertent non-disclosure conflicts or “qualifications” by the mediator while at the same time stating that mediators need not have any specific qualifications. Section 9 (d) provides a vehicle for counsel to engage in fishing expeditions into the mediation process, including the confidential caucuses. Section 9 presents a clear and present danger to the mediating parties of converting their expectation of a confidential settlement negotiation into litigation. The litigator now has an open invitation to invade and challenge almost any mediation by asserting the prospect of non-compliance with Section 9. Under present law existing in all jurisdictions, a failure to disclose does not void mediation confidentiality or privilege. It is not clear why NCCUSL inserted this radical provision at the reading for approval without providing opportunity for public comment.
Definition and Criminal Action Exception It is not clear that the definition of mediation communication is broad enough to encompass conduct not intended as a ‘statement” or involves the demeanor, reactions or other nonverbal actions of participants. If a matter is outside the definition of a “mediation communication” then it is not privileged or protected. Scars, limping, blinking, blushing, coughing or other physical attributes or reactions of participants are not within the definition of a “mediation communication.” IAM also asserts that the better view is to have no exceptions for criminal proceedings and to have a definition that expressly protects all conduct, observations and demeanor of all persons participating in mediation. UNIFORM MEDIATION ACT, AUGUST 2001 EXCERPTS SECTION 2. DEFINITIONS. In this [Act]: (2) “Mediation communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
SECTION 4. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY. (a) Except as otherwise provided in Section 6, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5. (b) In a proceeding, the following privileges apply: (1) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication. (2) A mediator may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the mediator. (3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant. (c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in mediation.
SECTION 6. EXCEPTIONS TO PRIVILEGE (a) There is no privilege under Section 4 for a mediation communication that is: . . . . (6) except as otherwise provided for in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based upon conduct occurring during a mediation; or (b) There is no privilege under Section 4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in: (1) a court proceeding involving a felony [or misdemeanor]: or (2) except as otherwise provided in subsection (c), a proceeding to prove or claim to rescind or reform a defense to avoid liability on a contract arising out of the mediation. (c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2). . . . .
SECTION 8. CONFIDENTIALITY. Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.
SECTION 9. MEDIATOR’S DISCLOSURE OF CONFLICTS OF INTEREST; BACKGROUND Before accepting a mediation, an individual who is requested to serve as a mediator shall: (a)(1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and (2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation. (b) If a mediator learns any fact described in subsection (a)(1) after accepting a mediation, the mediator shall disclose it as soon as practical. (c) At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute. (d) A person that violates subsection (a), (b), or (c) is precluded by the violation from asserting a privilege under Section 4. (e) Subsections (a), (b), [and][(g)] do not apply to an individual acting as a judge. (f) This [Act] does not require that a mediator have a special qualification by background or profession. [(g) A mediator must be impartial, unless after disclosure of the facts required in subsections (a) and (b) to be disclosed, the parties agree otherwise.]
SECTION 10. PARTICIPATION IN MEDIATION. An attorney may represent, or other individual designated by a party may accompany the party to, and participate in a mediation. A waiver of representation or participation given before the mediation may be rescinded.
