An Analysis of Principled Advocacy in the Development of the Uniform Mediation Act

“Republished online with the permission of the NIU Law Review.”

t has been a unique opportunity to
serve, on behalf of two conflict resolution organizations, as an Official
Observer to the drafting of the Uniform Mediation Act (UMA) by the National
Conference of Commissioners on Uniform State Laws (NCCUSL). Certainly, it is not often that one has the
chance to sit at the table with such an influential group and debate the manner
in which mediation law should be codified and to what extent, if any, such
mediation law should be uniform across the United States. It is even more challenging
when asked to represent professionally diverse national organizations of
conflict resolution professionals in this process.

This paper will discuss the role of professional mediation
association advocacy involved in the drafting of the UMA, outline the eleven
guiding principles of advocacy for the UMA adopted by certain national
mediation and conflict resolution organizations, and briefly review the UMA
according to these eleven guiding principles.
Except where indicated otherwise, the comments in this article represent
the opinions of the author and are not necessarily the official position of any
professional organizations mentioned in this article. The comments will be based upon the latest draft of the UMA which
was available at the time this article was written. The principled review of the UMA will discuss some aspects of the
UMA and is not intended to be a complete analysis of the UMA.

In 1999, this author became the sole Official Observer to
the NCCUSL UMA Drafting Committee on behalf of the Academy of Family Mediators
(AFM). Later, after the merger of AFM, the Society of Professionals in Dispute
Resolution (SPIDR) and the Conflict Resolution Network (CRENET) into the
Association for Conflict Resolution (ACR), the author continued in this role
and served as one of two Official Observers on behalf of ACR. The other ACR Official Observer was Dennis
Sharp, who had previously served as the Official Observer on behalf of SPIDR.

The drafting of uniform laws is a well-established part of
the legislative process in the United States.
Since 1892, NCCUSL has promoted the development of uniform state
laws. NCCUSL consists of more than 300
commissioners from each state, the District of Columbia, the Commonwealth of
Puerto Rico, and the U.S. Virgin Islands.
NCCUSL Commissioners are attorneys and many serve as state legislators,
judges, practicing attorneys, and law professors. NCCUSL works to develop uniform and model state laws and, after
adoption by NCCUSL, the membership encourages state enactment of these Acts in
order to establish uniformity of law between the above-mentioned U.S. states
and jurisdictions. The Uniform
Commercial Code is probably one of the best known NCCUSL Acts, but NCCUSL has
developed numerous Acts including the Uniform Arbitration Act and the 2000
Revised Uniform Arbitration Act.

In the case of the UMA, a parallel drafting committee
consisting of members of the American Bar Association Section on Dispute
Resolution (ABA) also met at the same time as the NCCUSL UMA Drafting Committee. This arrangement represented a very
substantial collaboration in the development of a UMA between these two very
important and influential organizations. Unfortunately, however, these
committees were not very professionally diverse. The NCCUSL Committee consisted entirely of lawyers and the ABA
UMA Committee consisted of virtually all lawyers. Thus, while many well-respected and extremely talented jurists,
law professors, legislators, and practicing lawyers were included in this
process, some with extensive mediation experience, there was a substantial
paucity of experienced mediators with training and experience other than law.

Representing a diverse organization of mediators in a
meaningful manner proved to be a huge task for this author. As the Official Observer for AFM and later
ACR, this author needed to bridge the gap between a very diverse professional
mediation organization that was ambivalent on the drafting of a UMA, and a more
homogenous group of UMA Drafters who were actively engaged in drafting a
UMA. There were clear differences in
the constituencies of each organization.
While the NCCUSL and ABA UMA Drafters were virtually all lawyers, the
Academy of Family Mediators, the Society of Professionals in Dispute
Resolutions, and the Association for Conflict Resolution are organizations that
represent a rich and diverse group of professional backgrounds including, but
not limited to, law.

I. Development Of Principled Advocacy

One of the first tasks that an advocate must face is
developing a strategic plan for advocacy.
In the case of the UMA, it was clear from the previous drafts of the UMA
that the UMA was a constantly changing document. Drafters would attempt to craft the Act in one manner and then on
a number of occasions move from one approach to another in their exploration to
develop a viable UMA that could be
enacted. For example, the provisions
concerning confidentiality and impartiality seemed to substantially change over
time. As such, it became clear that
reading each early UMA draft and meticulously reviewing and critiquing specific
wording would become a very time consuming process which would likely contribute
little at that stage to the drafting process. Often, proposing specific revisions
to the language in these early drafts would later prove to be a fruitless
effort, as entire sections in the UMA were deleted or completely reformulated. It became apparent that one needed to start
with a broad approach to the major aspects of the UMA.

As a professional mediation organization, it seemed that we
needed to develop a broad approach to
these negotiations that would:

1) seek to
unite diverse organizational membership viewpoints,

2) enumerate the principles on
which an organization stood,

3) provide the basis for on the
spot advocacy by organizational Official Observers,

4) serve as a role model for the implementation of the
best integrative advocacy strategies,

5) educate others about the
important underlying issues inherent in a UMA, and,

6) enable adoption of these
principles by other professional mediation organizations.

This author concluded early in the process that the only
way that an advocate could accomplish these tasks was to develop an
interest-based approach to the drafting of the UMA. Given the time constraints, it necessitated creating a set of
principles for one conflict resolution organization and then seeking to create
a consensus among other conflict resolution organizations as well.

As a result, eleven interests or principles were developed
and are summarized in Table 1.1.[1] The principles were first adopted by the AFM
Board of Directors in January, 2000.
SPIDR adopted virtually the same objectives in June, 2000, and the minor
changes made by SPIDR were subsequently accepted by the Board of Directors of
AFM in July, 2000. After the merger of
AFM, SPIDR, and the CRENET in 2001, the newly formed Association for Conflict
Resolution (ACR) also adopted these eleven concerns. For each organization, the format for the adoption of these objectives
involved both legislative committee input within each organization followed by
Board adoption of these Committee recommendations.

While many mediators were not enamored with the idea of a
Uniform Mediation Act, it appeared that the drafting of a UMA, which had
already begun, would likely result in a NCCUSL adopted UMA. It also seemed to this author that there was
some justification to support the drafting of uniform statutory provisions
which would address the admissibility of mediation communications in a court or
similar proceeding. The significant differences
between state mediation statutes did raise legitimate questions regarding how
courts would determine the admissibility of mediation communications across
jurisdictions. Even within some states there are numerous and sometimes
conflicting provisions concerning the admissibility of mediation communications
in proceedings depending upon a number of potential factors. For example the admissibility of mediation
communications in Florida can be a function of 1) whether the case was court ordered
to mediation,[2] 2) whether
the mediator works in a court-established Citizen Dispute Settlement Center,[3]
3) the nature of the dispute,[4]
4) possibly the nature of the mediation communication,[5]
and 5) factors specific to a case such as one party seeking to void a contract
due to claims of duress by the mediator.[6]

To this author, there is some appeal to intrastate uniformity
as well as interstate uniformity. However, there are also good reasons to
support the status quo, which would allow continuing innovation within the
states and permit states to craft mediation statutes to suit the particular
needs of a state. Compared to other professions, the development of the field
of mediation is still in its infancy, and care should be taken not to stifle
its further evolution and innovation.

The primary purpose of developing these eleven principles
was to encourage a conservative approach to the development of a Uniform Mediation
Act which would:

1) limit
the development of a UMA to only those areas where uniformity was required,

2) preserve many fundamental
principles of mediation,

3) attempt to reflect a broad
consensus of the mediation community wherever possible, and

4) respect the diversity of
mediators, mediation styles, and the
range of issues mediated.

II. Principled Review Of The UMA

The following discussion of the eleven principles and the
subsequent review represents the opinion of the author and is not an official
response of any professional organization mentioned above. The author, however, is very grateful to the
many UMA Drafters and Observers and fellow mediators who have participated in
the UMA drafting process. The comments
below will at times reflect ideas and reactions which have been raised not only
by this author but by others as well.

a. principle #1: address only those areas (such
as confidentiality) where uniformity is required

The first principle was designed to set a conservative tone
to the development of the UMA. While
AFM, SPIDR and ACR were willing to support the drafting of an Act that
addressed the eleven concerns, none of the organizations were strong advocates
at the time for the uniformity of mediation law. Rather, it appeared that the Act was going to be drafted with or
without Association involvement, and therefore it was necessary to participate
in the drafting process.

There are many reasons for limiting the drafting of a
Uniform Mediation Act. First, while it did appear to many that there was a need
for uniformity with regard to the confidentiality of mediation, there was
little support for a uniform mediation law governing other aspects of
mediation. Rather, it appeared that
creating uniformity where little need existed might inhibit the innovation and
experimentation of state legislatures, state courts, private mediators and
others. In addition, it was recognized
that many different models of mediation appear to work well in different
settings, and it might be counterproductive to attempt to create a “one size
fits all” model for the practice of mediation.

The issue of confidentiality was also a monumental task in
and of itself. State laws governing mediation vary considerably around the
country. Some states provide little, if
any, protection for the confidentiality of mediation communications. Other states provide for the confidentiality
of mediation and give the parties a privilege, and some go so far as to also
give the mediator a privilege or make the mediator incompetent to testify. It seemed that the writing of an adequate
mediation confidentiality or evidentiary act would by itself be a substantial
task that would consume most of the drafters’ time.

Provisions in earlier drafts of the Act that addressed
issues such as summary enforcement, mediation procedures, etc., appeared to be
best left out. States wishing to adopt summary enforcement provisions for mediation
agreements should be free to adopt such provisions. However, it did not seem apparent that there was presently a need
for uniformity of law in this regard.
In addition, in some states, mediation procedures were already being
governed by court rule or independent professional standards, and it was
apparent that in some jurisdictions the courts, and not the legislatures,
wanted to address mediator standards and procedures. Perhaps in a later revision of the UMA some of these other
provisions could be revisited, but at this time the above professional
mediation organizations clearly wanted to proceed slowly with the development
of a uniform mediation law.

Principle #1 Analysis

The UMA primarily provides for the privileged nature of
mediation communications. While the Act
does address other issues, such as party representation and mediator
disclosure, the vast majority of the
UMA addresses the issue of privilege and confidentiality.

The Act does not provide for broader confidentiality “to
the world” as many mediators had hoped.
Such an absolute confidentiality provision would have prohibited
disclosures outside of a judicial or similar proceeding as well as during such
a proceeding. While it does not prevent
the parties from agreeing in writing to make mediation more confidential, if
not in conflict with other state law, the Act primarily addresses the extent to
which mediation communications are admissible in a court or similar proceeding. States wishing to insert confidentiality “to
the world” provisions certainly could add such provisions without necessarily
compromising the uniformity of the Act.
States adopting the UMA thus would be wise to consider to what extent
they wish mediation to be confidential outside a court proceeding and to
consider possibly drafting language to broaden the scope of confidentiality.

b. principle
# 2: preserve party empowerment and
self-determination

One distinctive feature of mediation is the ability of the
parties to determine their own outcome.
This typically is referred to as self-determination.[7]
Party empowerment perhaps goes beyond self-determination to include providing
parties the opportunity to become actively involved in the mediation
process. As mediation becomes more institutionalized
within court procedure, the law, and general business practice, it is important
that parties do not lose their right to self-determination and to actively
participate in the mediation process.

Principle #2 Analysis

The Prefatory Note to the UMA does provide that the Act
should be “applied and construed in such a way as to promote uniformity and … active
party involvement, and informed self-determination by the parties” along with a
list of other important considerations.[8]
Unfortunately, however, such language is not part of the black letter act as it
had been when initially submitted to NCCUSL for approval in August 2001. In earlier drafts there was an Application
and Construction Section which included language detailing purpose
provisions.

While the UMA definition of mediation in Section 2(1)
refers to the parties reaching a “voluntary agreement,” more substantive
reference to notions such as self-determination or empowerment would have been
preferred.[9] It is noteworthy that the prohibition
against mediators making substantive reports to the court and the
inadmissibility of such reports in a court proceeding outlined in Section 7
does go a long way toward preventing mediators from using the threat of an
unfavorable report to compromise the self-determination of any party.[10] Given the absence of specific reference to
empowerment and self-determination, states considering the adoption of the UMA
may wish to create a purpose (or application and construction) section and
insert such concepts in this new section.

c. principle # 3: provide adequate, clear and
specific confidentiality protections and, where necessary, limited and clearly
defined exceptions that would maintain mediation as an effective confidential
process in which people are free to discuss issues without fear of disclosure
in legal or investigatory procedures

The goal of this principle was to ensure that mediation
participants would be able to speak
freely in mediation. There was a
recognition that exceptions to the confidentiality of mediation were likely
necessary. However, it was important to
insure that the exceptions did not inhibit the willingness of the parties to
speak openly in mediation. It appeared
that this could be accomplished if exceptions only existed where absolutely
necessary, if they were understandable, and if mediation participants could predict
with a reasonable degree of certainty whether or not mediation communications
would later be confidential.

There are many ways to construct a mediation
confidentiality provision. Some of the
factors which can be considered include whether confidentiality provisions:

1. apply
to all mediation participants, some mediation participants or just to the
mediator,

2. prevent disclosure in judicial
proceedings or to disclosures outside of a proceeding as well,

3.
allow exceptions to the confidentiality protections,

4. provide a privilege to any or
all of the mediation participants,

5.
make the mediator incompetent to testify, and

6. apply to only mediation
communications or to other activity such as party conduct.

Principle #3 does not cover the specific nature of the
confidentiality but does assert that one goal of creating a confidentiality
provision should be to preserve mediation as a process where parties may speak
freely with one another.

Principle #3 Analysis

It is difficult to provide exceptions to confidentiality
without risking the likelihood that parties may come to feel less willing to
speak openly in mediation. The drafters
therefore faced a difficult balancing act.
Most exceptions to confidentiality, in this author’s opinion, are
necessary, both to protect the parties and to protect the process. However the exceptions must be crafted in
clear language that would at least give the parties the ability to predict
which mediation communications would have confidentiality protections and which
communications, if any, would not be protected.

Unfortunately, the Act is not that clear and, in some
cases, is confusing. For example, the
distinction between Section 5(c) where an individual can lose his or her entire
privilege (for all mediation communications) for intentionally using “a mediation
to plan . . . a crime”[11]
and Section 6(a)(4)[12]
where an individual can lose his or her privilege for a specific mediation
communication for intentionally using “a mediation communication…to
plan a crime” to this author seems vague.
Will parties feel free to brainstorm if they fear they could lose their
privilege for the entire mediation or even just for a specific mediation
communication? How does one draw a
distinction between using a mediation to plan a crime and using a mediation communication
to plan a crime? Similarly, how will one determine a party’s intent in the
context of brainstorming? The drafters
understandably wanted to prevent criminals from using the UMA to conceal their
criminal activities. However, the lack
of clarity may have other unintended effects.
For example, this author wonders if parties will be advised to consult
with their attorney each time before speaking out for fear of losing their
privilege. As the language in the Act,
“commit a crime” also sets a rather low threshold for the exceptions to apply,
the net result may be to unnecessarily inhibit party involvement in mediation.

d. principle # 4: reflect an understanding of
the diversity of mediation styles and range of disputes mediated

This was an important issue, as the Act was attempting to
create a one size fits all approach to all mediators and mediation styles and
to most types of disputes mediated. The
definition of mediation would need to be broad enough to capture the wide range
of mediation techniques without becoming so broad as to include other
unintended conflict resolution strategies. Styles of mediation including
facilitative, evaluative, transformative, and therapeutic, are just a few
examples of the many ways in which some mediators practice. At the same time, drafters needed to be
careful that any definition would not be so broad that all discussions
involving three or more persons could inadvertently fall under the Act. Also, it was clear that any definition of
mediation in this Act, if adopted throughout the country, might come to be the
standard definition of mediation and impact the future practice of
mediation. Thus, while the definition
needed to be broad to assure the protections of the Act would apply to different
styles of mediation, it must also have been sufficiently narrow to
appropriately delineate what mediation was.

A second concern was that the Act should accommodate the
many different types of disputes which are mediated. This proved to be a challenging task as it is impossible for the
drafters to be very knowledgeable about the full range of disputes
mediated. While many experts are
knowledgeable about traditional court mediation programs and traditional
private mediation practices, there exists a wide range of other disputes that
are “mediated” in other contexts and the extent to which these practices exist
are difficult to ascertain.

Principle #4 Analysis

Section 3(b) does provide some exclusion for some peer
mediation programs, correctional institution for youth mediation programs, and
for some circumstances involving collective bargaining issues.[13] For the initial UMA, it is probably wise to
limit the scope of the Act to exclude areas where the UMA may not appropriately
address the specific concerns in a given area.
It is not clear if the scope of the Act should have been further
limited. For example, it is unclear to
this author how this Act will impact the conduct of mediation like conferences
on Native American Reservations and to what extent these proceedings will be
deemed confidential. Unfortunately, conflict resolvers representing different
important cultural groups did not actively participate in the drafting process,
and it is not clear to what the extent this Act will impact or possibly intrude
into the norms and practices of diverse cultural groups.

In one case, the drafters failed to best address the unique
nature of child protection mediation in a uniform manner, but instead left to
the states the option to address child protection mediation independently. Child protection mediation (typically
involving the non-criminal issues in cases of child abuse and neglect which are
often court ordered to mediation) frequently includes discussions of
allegations of child abuse and neglect in the petition before the court, along
with case planning issues such as placement of the child, visitation, treatment
for the child and parents, and services to the family, etc. Unless there is an
explicit protection for these admissions (which is currently a bracketed state
option), Section 6(a)(7) provides that mediation communications “sought or
offered to prove or disprove abuse, neglect or abandonment, or exploitation in
a proceeding in which a child or adult protective services agency is a party”
are not privileged.[14] If states do not adopt the optional language
to protect these mediation communications,
parents will not be likely to discuss these allegations in mediation. This will likely serve to inhibit what has
been shown to be a very helpful form of ADR in an area that benefits children,
parents and the state. It is for this
reason that in 1995 the National Council of Juvenile and Family Court Judges
(NCJFCJ)[15] endorsed the notion that the confidentiality
of such mediation communications in a child protection mediation should be
maintained in a court proceeding.[16] In addition, giving states the opportunity
to choose to adopt or not adopt this confidentiality protection for child
protection mediation, erodes the uniformity of this Act as it applies to child
protection mediation. One can only hope
that states will recognize the importance of this optional language and choose
to protect mediation communications in cases where the court refers the case
and the child protective services agency participates in the mediation.

e. principle # 5: be easily understandable to
mediation participants

Parties entering mediation will be most empowered if they
can easily understand the extent to which mediation communications are
confidential. A complex Act written in complicated legal language will only
serve to confuse parties and will make them feel they need to be represented in
mediation. Further, parties may be less inclined to speak up without representation
fearing that their statements might later be deemed admissible in court. Given
the wide range of disputes where parties are typically not represented, such as
community mediation, a UMA that is difficult to understand would only serve to
hinder participation in mediation.

Principle #5 Analysis

Unfortunately, this Act is complicated and hard to
understand. If parties and experts
cannot understand the provisions and cannot predict with some degree of
certainty which mediation communications are confidential, then parties will be
less likely to openly participate in mediation. To this extent, the Act could have the unintended effect of
inhibiting open discussion and disempowering participants.

For example, it is unclear whether an attorney or other
representative is a “nonparty participant” under the Act and therefore is
entitled to the privilege afforded to a nonparty participant. In the UMA, a “nonparty participant” is
defined in Section 2(4) as “ . . . a person, other than a party or mediator,
that participates in a mediation.”[17] From this definition, it would appear that
an attorney or other representative is a nonparty participant. However, later in the Act, Section 6(a)(6)
refers to “conduct occurring during a mediation” by “a mediation party,
nonparty participant, or representative of a party.”[18] This section would appear to suggest that an
attorney or other representative possibly may not be a nonparty participant.

Perhaps any new Act will be somewhat unclear, and it will
be left to the courts ultimately to make practical sense of the Act. However, this author expects that some
states and jurisdictions will be tempted to better clarify the provisions in
the Act.

f. principle # 6: preserve mediation as a
process that is separate and distinct from the practice of law, arbitration,
and judicial proceedings

Mediation is a distinct process from the practice of law,
arbitration and litigation. As such,
the Act should not blur the distinction with these other processes. First,
mediation must clearly be distinguished from the practice of law, as mediation is
a more free flowing process where parties with adversary interests may seek the
help of a impartial individual to facilitate negotiation between the
parties. Clearly distinguishing
mediation from the practice of law will also help to avoid creating the “turf”
issues between the various professionals when the argument is raised that mediation
is the unlicensed practice of law.
Further, if mediation is the practice of law, then lawyers may find that
practicing law simultaneously with parties in dispute may raise issues of the
unethical practice of law. More importantly,
we will better serve the field by focusing our energies upon what constitutes
the appropriate practice of mediation.

Mediation can be distinguished from binding arbitration in
that the parties are the decision-makers and the mediator has no
decision-making authority. However,
given the broad range of mediation styles, it is clear that some forms of
evaluative mediation may be similar to non-binding arbitration.

It is also clear that settlement conferences conducted by a
judge who continues to hold a decision-making role in the case are different
from mediation. These settlement conferences are not confidential. Party
participation in these conferences will likely be less active, as the judge is
a potential decision-maker, and parties may be intimidated by the presence of
the judge. These judges are also
governed by other rules that generally prohibit ex parte communications, limit
the procedural flexibility that mediators have, and otherwise restrict their
conduct. Judges certainly can accomplish
a great deal in settlement conferences using effective conflict resolution
strategies, however, the rules governing these conferences should not be
addressed in the UMA.

Principle #6 Analysis

In this regard the UMA seems to provide that mediation is
not the practice of law, as it clearly states that mediators may come from a
variety of professions and backgrounds.
Similarly, the scope of the Act does provide that the UMA does not apply
to “mediation” conducted by judges with decision-making authority. Lastly, the Act provides that the parties,
not the mediator, are the decision-makers, and as such distinguishes mediation
from binding arbitration.

g. principle # 7: provide that mediators may
come from a variety of professional and nonprofessional backgrounds

This seemingly simple provision was very important to the
larger mediation community. First, as
mentioned previously in this article, the UMA assured that mediation would not
be labeled as solely the jurisdiction of one discipline.

Secondly, it was important that the provisions of the Act
would apply uniformly to mediations conducted by all mediators, regardless of
profession or background (and not just to mediations conducted by mediators who
have certain professional qualifications). Having application of the Act apply
to only one subset of mediators such as attorney mediators or mental health
mediators would mean that the Act would not uniformly provide for the
confidentiality of all mediation communication. Further, if states were to develop different definitions of
mediators according to professional background, the Act might no longer be
uniform, as mediation communications might be inadmissible in one state and
admissible in another.

In addition, an act that just covered some types of
mediators would be divisive within the mediation community. Rather than serve
to unite mediators in their quest to build the profession of mediation, it
might lead to greater tension between mediators and create different classes of
mediators.

Principle #7 Analysis

In this regard, the UMA is relatively clear. It applies to all mediators regardless of
background or profession. The drafters
seemed to well understand this issue and were largely in agreement with the
Official Observers advocating for Principle 7.

h. principle # 8: provide procedural
protections for the disputants, the mediator, and the process when exceptions
to confidentiality are raised

Another important issue was protecting the parties from
information being brought into a proceeding without a preliminary process for
determining whether the information would be admissible, and providing that
information admissible for one purpose would not therefore automatically become
admissible in other subsequent proceedings.

Principle #8 Analysis

The Act does provide in Section 6(b) that for issues
concerning a court proceeding involving a felony (and misdemeanor is a state’s
option as well) or “a proceeding to prove a claim to rescind or reform or a
defense to avoid liability on a contract arising out of the mediation” a
hearing in camera would be required to demonstrate that the “evidence is not
otherwise available [and the] . . .
need for the evidence . . . substantially outweighs the interest in
protecting confidentiality.”[19] However, these procedural protections are
not explicitly in place for all exceptions.
Importantly, Section 6(d) does provide that information which is
admissible for one purpose is only admissible to the extent necessary to
accomplish the purpose of that exception.[20]

One item missing in the UMA is a requirement to notice
mediation participants when anyone seeks to introduce mediation communications
into a proceeding. In the present
proceeding, for example, the mediator may not know that their mediation
communications are being introduced in a proceeding and therefore, while the
mediator has a privilege (to prevent anyone from disclosing a mediation
communication of a mediator), the mediator would not know that he or she might
need to exercise that privilege.
Similarly, in a subsequent or unrelated proceeding involving some, but
not all of the parties, a party not involved in the subsequent hearing likely
would not receive notice that their mediation communications were being
introduced. Therefore, the party might
not have the opportunity to exercise a privilege that, in theory they have, but
perhaps, given the absence of required notice of intent to introduce privileged
communications, they actually lose by default.

principle
# 9: adequately address how mediators, parties and representatives are to
comply, if at all, with mandatory reporting requirements that may be required
by law or professional ethical standards

Within the mediation community there is not a clear
agreement as to whether mediators should be required to comply with mandatory
reporting rules such as child abuse.
However, it is evident that there is a need for clarity on this issue so
that parties entering mediation can know what to expect in this regard.

Principle #9 Analysis

This Act provides for no confidentiality outside of a court
or similar proceeding. Therefore,
unless a state were to have a statute to the contrary, it would appear that
state laws governing mandatory reporting of abuse and neglect would apply to
parties in mediation and to the mediator as well. For mediators, Section
7(b)(3) specifically states that “[a] mediator may disclose a mediation
communication evidencing abuse, neglect, abandonment, or exploitation of an
individual to a public agency responsible for protecting individuals against
such mistreatment.”[21]
Similarly, obligations of a professional to report professional misconduct would likely not be hampered by this Act as
it applies to mediation parties and nonparty participants.

j. principle # 10: preserve the impartiality of
the mediator

When this principle was first put forth by the professional
national mediation associations mentioned above, the concept of impartiality
was included in the then existing definition of mediator in the UMA. Later the drafters removed impartiality from
the definition due in part to concerns that:

1. an
operative term such as impartial should not be a part of the definition and, if
included, should be addressed later in the Act,

2. some mediators preferred to be
partial,

3. including impartiality in the
definition of mediator might cause the parties to lose the confidentiality of
the Act if it was later determined that the mediator was partial and the court
concluded therefore that a mediation did not occur,

4. impartiality is difficult to
define and to achieve, and

5. mediators might be liable if
they failed to be impartial.

Conflict resolution profession associations mentioned above
took the position that, despite the above mentioned concerns, a fundamental
principle of mediation is that mediators are impartial. Descriptions of mediators as being impartial
(or neutral) are common in many state statutes and rules governing mediators or
mediation and the concept of impartiality is also included in the Proposed
Model Rule of Professional Conduct for The Lawyer as Third Party Neutral
sponsored by Georgetown University and the CPR Institute for Dispute
Resolution.[22] This basic issue addresses the relationship
of the mediator to the parties and their agreement and the conduct of the
mediator in relationship to the parties and their agreement.

A key aspect of mediation is that the parties can trust
that the mediator will be fair in dealing with all mediation participants. When parties are ordered or referred to
mediation by courts, administrative agencies and other entities, it is
particularly important that the mediator be impartial, unless the parties
choose to make an informed consent otherwise.
The impartiality of the mediator
at least provides some assurance that parties who may be denied easy access to
the courts are not pressured into settlement in a process that is inherently
unfair.

Lastly, providing that mediators be impartial not only
protects the parties, it protects the mediation process. If mediators are seen as partial to one side
or the other, then one can assume that public mistrust will follow resulting in
harm, not only to parties, but to the field of mediation as well. Clearly, the above named conflict resolution
organizations advocated a principle that was more focused upon protecting the
parties and the process than protecting the mediator. One would hope that any UMA adopted by a state legislature would
reflect a similar position.

Principle #10 Analysis

While the concept of impartiality is not included in the
definition of mediator, the new Act does include a bracketed (optional)
provision concerning impartiality that seems to address this issue. Section 9(g) states that:

A mediator must be impartial, unless after disclosure of
the facts required in subsections (a) and (b) to be disclosed, the parties
agree otherwise.[23]

It further allows states the option to provide that a
mediator may lose his or her privilege if he or she fails to be impartial as
provided above. Should this happen, the
parties would still keep their privilege, and it would appear that only the
mediator would be affected.

In addition, by allowing parties to waive mediator
impartiality after informed consent, the Act’s optional provision would permit
those mediators who feel that they can constructively assist the parties, even
if they are partial, to continue to mediate after appropriate disclosure and
party consent. Similarly, it allows
parties the choice to have such a mediator and still provide the mediator with
a privilege. Such conduct might still
be considered unethical under certain mediation standards,[24]
however, the mediator would not automatically lose his or her privilege under
the UMA.

States would be well advised to adopt the optional
provision concerning impartiality contained in Section 9(g). Since there is no definition of
impartiality, states might also consider including such a definition so as to
provide the parties, the mediator, and the court with some guidelines for
determining when a mediator has failed to be impartial. For example, some seem to consider
impartiality to be a function of the mediator’s relationship to the parties
outside of mediation, while others would say that impartiality is a concept
that applies to the mediator’s conduct in the mediation. While the latter would
seem to be important, if we are to protect the integrity of the process, the
former is also an important component as well.
Either way, states will be well advised to adopt this optional
provision, if the concept of impartiality is not already included elsewhere in
state law.

k. principle # 11: take into consideration the
special concerns raised when the threat of violence is present

The purpose of this principle was to be sensitive to the
very real concerns that arise when the threat of violence is present. This type of threat can raise very important issues regarding safety concerns
and a substantial imbalance of power.
It would seem, that at a minimum, confidentiality provisions should not
limit the ability of those involved in mediation to protect the safety of other
mediation participants as well as possibly others at risk who are not present
during mediation. In the case of
divorce mediation where domestic violence might become apparent, for example,
parties and the mediator perhaps should be permitted to notify a potential
victim of impending danger or alert appropriate authorities when the threat
appears to be highly credible. At the
same time, it is important not to impose a Tarasoff-type standard upon the
mediation participants where none may otherwise exist. Thus, mediation
participants should be free to take appropriate action to protect potential
victims when credible threats of violence are perceived, but there need not be
an additional duty placed upon mediation participants to take such an action.

Principle #11 Analysis

As the Act does not prevent communications “to the world”
it would appear that under most circumstances the mediation participants could
notify the victim or the police where credible threats of violence exist. While there are some prohibitions regarding
mediator reports in Section 7, it would appear that the mediator is not
prohibited by the UMA from also taking such action in most circumstances. Of course, mediator disclosure may also be
governed by other state law, court rule, professional standards, or an executed
mediation confidentiality agreement.

Conclusion

The construction of an interest-based approach to advocacy
well served the professional mediation community. Professional mediation associations were able to organize and
unify their efforts to implement a comprehensive and organized program of
advocacy which could constructively assist the drafting of a Uniform Mediation
Act based upon a coherent set of guiding principles. This strategy was especially helpful at a time when major
mediation organizations were merging.

Professional mediation advocacy in the development of a
Uniform Mediation Act is critically important to assure that any such Act
reflects a broad understanding of mediation including the wide variety of
mediation styles and mediation disputes.
Mediation draws upon a variety of disciplines and mediation
practitioners come from many different professional and experiential
backgrounds. Given the fact that
practically all Committee drafters were lawyers and given the narrow range of
experience with mediation among the drafters, it was very important for
professional mediation organizations to participate in this legislative
process. Hopefully, when a revised UMA
is contemplated in the future, the composition of the drafting committees will
better reflect the diversity of the mediation community.

Each state must evaluate for itself whether or not the Act
will serve to enhance the laudable goals of the UMA Drafters and benefit the
consumers of mediation. While the
appeal of uniformity is very compelling, each state must determine whether the
Act in whole or part will enhance existing state statutes. At the same time that the UMA is introduced,
there may also be attempts to modify and/or supplement the Act. Given the failure of the Act to provide
broad confidentiality protections outside of a court or similar proceeding,
state legislatures would be well advised to consider whether legislation
governing the confidentiality of mediation communications outside a proceeding
(with reasonable exceptions to this broader confidentiality provision) would
further improve the Act. Such
confidentiality protections might mirror some of the existing exceptions that
govern exceptions to confidentiality within a proceeding. It would appear that complementary
provisions addressing confidentiality outside a proceeding would not necessarily
conflict with the integrity or uniformity of the Act.

States may consider whether to modify the Act to make it
more consistent with existing state statutes or to improve it. The UMA is clearly not a perfect document
and could be improved. However, one
must weigh whether making substantive changes to the Act is worth the loss of
uniformity across states. Perhaps
non-substantive changes that make the Act more understandable, provide greater
clarity, or otherwise improve the Act while not compromising the uniformity of
the Act may be undertaken with less hesitation.

The Act will be significant not only for what is contained
in the UMA, but also for what existing statutory provisions are simultaneously
repealed upon adoption of a UMA. State
legislatures and professional advocacy groups will need to monitor the
legislative process to be sure that other important provisions that are
embedded within these existing statutes remain intact. For example, concepts such as impartiality
and neutrality may be lost if states replace statutory definitions of mediator
or mediation that had included such concepts and fail to adopt the optional
language governing impartiality.
Similarly, states with provisions that make the mediator incompetent to
testify will need to consider whether to maintain such language when
considering adoption of the UMA. Toward
this end, there is a Legislative Note that states the following:

The Act does not supersede existing state statutes that
make mediators incompetent to testify, or that provide for costs and attorney
fees to mediators who are wrongfully subpoenaed.[25]

According to the UMA Reporters, half the states have a
general application mediation statute and the other half have a host of
statutes that govern the confidentiality of mediation communications. In many cases, these various provisions are
narrowly written and sometimes conflicting.
One possible benefit resulting from the adoption of a UMA for a state
with inconsistent mediation confidentiality provisions is that this Act will
provide for greater uniformity of application within a state. It would seem that intrastate uniformity
would make it easier for parties and mediators to better understand the
mediation confidentiality provisions in their state. Hopefully, these uniform standards will adequately reflect the
unique issues governing different mediation circumstances.

Another issue worthy of consideration is whether this Act
should become a uniform Act or whether it should be welcomed as a model Act
which could be of immeasurable help as a template for states struggling to
develop comprehensive mediation confidentiality statutes. Viewing it as a model Act would enable
states to have greater latitude to determine what works best in their state and
to continue to innovate and experiment.
Ultimately, it will be up to each state to determine what best serves
their citizens. Certainly for states with little or virtually no statutory
protection for the confidentiality of mediation communications, the UMA
represents a viable option for legislative adoption.

Now that this Act has been adopted by NCCUSL, it is critically
important for state professional mediation associations, acting sometimes in
concert with national professional mediation associations, to monitor the
introduction of this legislation in their jurisdictions and follow closely the
state legislative process.

Table 1.1

Association for Conflict
Resolution

Uniform Mediation Act
Principles

A Uniform Mediation Act, if adopted, should be one that
would:

1. address only those areas (such as
confidentiality) where uniformity is required;

2. preserve party empowerment and
self-determination;

3. provide adequate, clear and specific
confidentiality protections and, where necessary, limited and clearly defined
exceptions that would maintain mediation as an effective confidential process
in which people are free to discuss issues without fear of disclosure in legal
or investigatory procedures;

4. reflect an understanding of the diversity of
mediation styles and range of disputes mediated;

5. be easily understandable to mediation
participants;

6. preserve mediation as a process that is
separate and distinct from the practice of law, arbitration, and judicial
proceedings;

7. provide that mediators may come from a variety
of professional and nonprofessional backgrounds;

8. provide procedural protections for the
disputants, the mediator, and the process when exceptions to confidentiality
are raised;

9. adequately address how mediators, parties and
representatives are to comply, if at all, with mandatory reporting requirements
that may be required by law or professional ethical standards;

10. preserve the impartiality of the mediator; and

11. take into consideration the special concerns
raised when the threat of violence is present.