December 2000 Draft Uniform Mediation Act

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DRAFT
FOR DISCUSSION ONLY

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS

INTERIM DRAFT
DECEMBER 2000

UNIFORM MEDIATION ACT

With Prefatory Note and Reporter’s Notes

COPYRIGHT © 2000
by
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS

The ideas and conclusions set forth in this Draft, including the proposed statutory language and any comments or Reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They also have not been passed upon by the American Bar Association House of Delegates, the ABA Section of Dispute Resolution Drafting Committee, or any Section, Division, or subdivision of the American Bar Association. They do not necessarily reflect the views of the Conference and its Commissioners or its Drafting Committee and its Members and Reporter, or those of the ABA, its Drafting Committee, its Members and Reporter, or any Section, Division or Subdivision of the ABA. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. Bracketed language in the text [] refers to language that has been offered for discussion purposes only, and has not been accepted into the Draft by the Drafting Committees.

NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS

Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300
Chicago, Illinois 60611
312/915-0195

Section 1. Title

Part 1. Application, Construction, Definitions, Scope

Section 2. Application and Construction

Section 3. Definitions

Section 4. Scope

Part 2. Privilege

Section 5. Privilege Against Disclosure

Section 6. Admissibility; Discovery

Section 7. Waiver and Preclusion of Privilege

Section 8. Exceptions to Privilege

Part 3. Mediator Disclosure, Party Accompaniment

Section 9. [Disclosure by Mediator]

Section 10. Party’s Right to Designate Mediation Participant

[Section 11. Optional Summary Enforcement of Mediated Settlement Agreements]

Part 4. Severability, Applications, Effective Date, Repeals

Section 12. Severability Clause

Section 13. Effective Date

Section 14. Repeals

Section 15. Application to Existing Relationship

DRAFT FOR DISCUSSION ONLY

UNIFORM MEDIATION ACT
Interim Draft (December 2000)

SECTION 1. TITLE. This [Act] shall be cited as the Uniform Mediation Act.

PART 1. APPLICATION, CONSTRUCTION, DEFINITIONS, SCOPE

SECTION 2. APPLICATION AND CONSTRUCTION.

In applying and
construing this [Act], consideration must be given to:

(1) the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process and informed self-determination by the parties;

(2) the need to promote candor of parties and mediators through confidentiality, subject only to the need for disclosure to accommodate specific and compelling societal purposes;

(3) the need to promote uniformity of the law with respect to its subject matter among States; and

(4) the policy that the decision making authority in the mediation process rests with the parties.

SECTION 3. DEFINITIONS. In this [Act]:

(1) “Court” means [a court of competent jurisdiction in this State].

(2) “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

(3) “Mediation communication” means an oral assertion, or a record of an assertion or nonverbal conduct of an individual who intends it as an assertion that is made during a mediation or for purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.

(4) “Mediator” means an individual, of any profession or background, who is appointed by a court or government entity, or is engaged by parties under an agreement evidenced by a record to conduct a mediation.

(5) “Nonparty participant” means a person, other than a party or mediator, who participates in a mediation.

(5) “Party” means a person who participates in a mediation and whose agreement is necessary to resolve the dispute.

(6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(7) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(8) “State” means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(9) “Signed” means executed and includes electronic signatures as defined in by the Uniform Electronic Signatures in Global and National Commerce Act (__ U.S.C. __).Transactions Act.

SECTION 4. SCOPE.

(a) Except as otherwise provided in subsection (b), this [Act] applies to a mediation in which parties agree in a record to mediate, or are directed or requested in a record by a court or governmental entity, to participate in a mediation.

(b) This [Act] does not apply to:

(1) a mediation of a dispute relating to the negotiation of or arising under the terms of a collective bargaining relationship;

(2) a mediation of a dispute involving minors that is conducted under the auspices of a primary or secondary school; or

(3) a conference conducted by a judge acting within the scope of their judicial duties.

(c) Part 2 of this [Act] does not apply to those sessions of a mediation which all parties agree in advance are not privileged, if the parties agree in a signed record or orally during a judicial, administrative or arbitration proceeding.

PART 2. PRIVILEGE

SECTION 5. PRIVILEGE AGAINST DISCLOSURE.

(a) In a civil proceeding before a court, an administrative agency, an arbitration panel, or any other tribunal, including juvenile court, or in a criminal misdemeanor proceeding, the following rules apply:

(1) A 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 mediator may refuse to disclose evidence of a mediation communication.

(4) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

(b) In a criminal felony proceeding related to the matter mediated by [here each state determinesinserts programs that should be covered by this provision], a party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication, unless a court determines, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is otherwise unavailable and that there is a need for the evidence that outweighs the importance of the policy favoring the protection of confidentiality under this [Act].

SECTION 6. ADMISSIBILITY; DISCOVERY.

(a) A mediation communication is not subject to discovery or admissible in evidence in a civil proceeding before a court, an administrative agency, an arbitration panel, or any other tribunal, including juvenile court, or in a criminal misdemeanor proceeding, if:

(1) the communication is privileged under Section 5;

(2) the privilege is not waived or precluded under Section 7; and

(3) there is no exception that permits disclosure of the communication under Section 8.

(b) Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.

SECTION 7. WAIVER AND PRECLUSION OF PRIVILEGE.

(a) A privilege under Section 5 may be waived in a record or it may be waived orally during a judicial, administrative, or arbitration proceeding, if it is expressly waived:

(1) by all parties; and

(2) in the case of the privilege of a mediator, it is also expressly waived by the mediator; and

(3) in the case of the privilege of the nonparty participant, it is also expressly waived by the nonparty participant.

(b) A party or mediator who makes a representation about or disclosure of a mediation communication that prejudices another person in a judicial, administrative, or arbitration proceeding is precluded from asserting the privilege under Section 5, to the extent necessary for the person prejudiced to respond to the representation or disclosure.

(c) A person who uses or attempts to use the mediation to plan or commit a crime is precluded from asserting the privilege under Section 5.

(d) An individual who violates a provision in Part 3 of this [Act] is not precluded by the violation from asserting the privilege under Section 5.

SECTION 8. EXCEPTIONS TO PRIVILEGE.

(a) There is no privilege against disclosure under Section 5 for:

(1) an agreement evidenced by a record signed by two or more parties;

(2) a mediation communication that is available to the public under an open records law or that is made during a session of a mediation that is open to the public or is required by law to be open to the public;

(3) a mediation communication that constitutes a threat made by a mediation participant to inflict bodily harm or unlawful property damage;

(4) a mediation communication that is used to plan, attempt to commit, or commit a crime;

(5) a mediation communication offered to prove or disprove abuse, neglect, abandonment, or exploitation in a judicial, administrative, or arbitration proceeding in which a public agency is protecting the interests of an individual protected by law;

(6) a mediation communication offered to establish or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or

(7) a mediation communication offered to establish or disprove a claim or complaint of professional misconduct or malpractice filed against a party or representative of a party based on conduct occurring during a mediation, if offered through evidence provided by an individual other than a mediator.

(b) There is no privilege under Section 5 if a court, administrative agency, or arbitration panel 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 importance of the policy favoring the protection of confidentiality under this [Act] and:

(1) the mediation communication is offered to establish or disprove a claim or complaint of professional misconduct or malpractice filed against a party or a representative of a party based on conduct occurring during a mediation, if offered through evidence provided by a mediator;

(2) the mediation communication is offered in a judicial, administrative, or arbitration proceeding to prove a claim or defense recognized by law as sufficient to set aside, rescind, or reform a contract; or

(3) the mediation communication evidences a significant threat to public health or safety.

(c) If a mediation communication is not privileged under an exception in subsection (a) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure may be admitted. The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose.

PART 3. MEDIATOR DISCLOSURE, PARTY ACCOMPANIMENT

SECTION 9. DISCLOSURE BY MEDIATOR.

[(a) Before accepting a mediation an individual who is requested to serve as a mediator shall:

(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 any existing or past relationship with a party or foreseeable participant in the mediation; and

(2) disclose any such fact known or learned soon as is practical before accepting a mediation.]

[(b) The mediator shall disclose as soon as is practical any such fact learned by the mediator after accepting a mediation.]

[(c) If requested to do so by a party, a mediator shall disclose the mediator’s qualifications to mediate a dispute.]

(d) A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, agency, or any other authority that may make a ruling on the dispute that is the subject of the mediation, except that a mediator may report:

(1) whether the mediation occurred or has terminated, or a settlement was reached, and a report of attendance;

1. as permitted under Sections 7 or 8; or


2. a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency which that protects against such abuse.

SECTION 10. PARTY’S RIGHT TO DESIGNATE MEDIATION PARTICIPANT.

A party has a right to have an attorney or other individual designated by the party attend and participate in the mediation. Any waiver of this right may be rescinded.

[SECTION 11. SUMMARY ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.

[Reporter’s Note: The Drafting Committees recommend against adoption of Section 11, which was drafted in response to a request from the National Conference of Commissioners on Uniform State Laws Conference in the Committee of the Whole at the Annual Meeting in Denver, Colorado, on July 30, 1999.]

(a) Parties who have entered into a mediated settlement agreement evidenced by a record which that has been signed by the parties and their attorneys, may [move] the court to enter a judgment in accordance with the settlement agreement, if:

(1) all parties to the settlement agreement join in the [motion];

1. no litigation is pending on the subject matter of the mediation;

(3) all parties to the settlement agreement are represented by counsel at the time the agreement is entered, and the [motion] is filed;

(4) the settlement agreement contains a statement to the effect that the parties are all represented by counsel and desire to seek summary enforcement of their agreement;

(5) no party withdraws support for the [motion] prior to entry of judgment, and

(6) the agreement does not relate to a divorce or marriage dissolution.

(b) If the requirements of subsection (a) are satisfied, the court may enter judgment. The judgment may be recorded, docketed, and enforced as any other judgment in a civil action.]

PART 4. SEVERABILITY, APPLICATION, EFFECTIVE DATE, REPEALS

SECTION 12. SEVERABILITY CLAUSE.

If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

SECTION 13. EFFECTIVE DATE.

This [Act] takes effect ….

SECTION 14. REPEALS.

The following acts and parts of acts are hereby repealed:

SECTION 15. APPLICATION TO EXISTING RELATIONSHIP.

This [Act] applies….