February 20, 2001
SECTION 1. TITLE. This [Act] may be cited as the Uniform Mediation
SECTION 2. APPLICATION AND CONSTRUCTION. In applying and construing
this [Act], consideration must be given to:
(1) the need to promote candor of parties and mediators through
confidentiality of the mediation process, subject only to the need for
disclosure to accommodate specific and compelling societal interests;
(2) the policy of fostering prompt, economical, and amicable resolution
of disputes in accordance with principles of integrity of the mediation
process, active party involvement, and informed self-determination by the
(3) the policy that the decision-making authority in the mediation process
rests with the parties; and
(4) the need to promote uniformity of the law with respect to its subject
matter among States.
SECTION 3. DEFINITIONS. In this [Act]:
(1) “Authenticate” means to:
(A) sign; or
(B) execute or adopt a symbol, or encrypt a record in whole or in part,
with present intent to:
(i) identify the authenticating party; and
(ii) adopt, accept, or establish the authenticity of a record or term.
(2) “Court” means [a court of competent jurisdiction in this State].
(3) “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.
(4) “Mediation communication” means a statement, whether oral, in a
record, verbal, or nonverbal, that is made or occurs during a mediation
or for purposes of considering, conducting, participating in, initiating,
continuing, or reconvening a mediation or retaining a mediator.
(5) “Mediator” means an individual, of any profession or background,
who conducts a mediation.
(6) “Nonparty participant” means a person, other than a party or mediator,
who participates in a mediation.
(7) “Party” means a person who participates in a mediation and whose
agreement is necessary to resolve the dispute.
(8) “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.
(9) “Proceeding” means a legislative process, or a judicial, administrative,
arbitral, or other adjudicative process, including related pre- and post-hearing
motions, conferences, and discovery.
(10) “Record” means information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is retrievable in
SECTION 4. SCOPE.
(a) Except as otherwise provided in subsections (b) or (c), this [Act]
applies to a mediation in which the parties agree in a record to mediate
or are required by statute or referred by a court, a governmental entity,
or an arbitrator to mediate.
(b) This [Act] does not apply to a mediation:
(1) relating to the negotiation of or arising under the terms
of a collective bargaining relationship;
(2) involving parties who are all minors which is conducted under the
auspices of a primary or secondary school or correctional institution;
(3) conducted by a judicial officer who might make a ruling on the case
or who is not prohibited by court rule from communicating with an authority
as provided in Section 8(a).
(c) If the parties agree in advance that all or part of a 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 an authenticated
record or reflected in the record of a proceeding. The parties must inform
the mediator and any nonparty participants of the agreement.
SECTION 5. CONFIDENTIALITY OF MEDIATION COMMUNICATIONS; PRIVILEGE
AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY
(a) A mediation communication is confidential and, if privileged, is
not subject to discovery or admissible in evidence in a proceeding.
(b) In a proceeding, the following rules of privilege 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 a mediation communication.
(3) A mediator may refuse to disclose, and may prevent any other person
from disclosing, a mediation communication of the mediator.
(4) A nonparty participant may refuse to disclose, and may prevent any
other person from disclosing, a mediation communication of the nonparty
(c) 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 6. 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 proceeding, if it is expressly waived by all
mediation parties, and:
(1) in the case of the privilege of a mediator, it is expressly
waived by the mediator; and
(2) in the case of the privilege of a nonparty participant, it is expressly
waived by the nonparty participant.
(b) A person who discloses or makes a representation about a mediation
communication that prejudices another person in a 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 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.
(d) A person who violates a provision in Section 8 (d) through (f) is
not precluded by the violation from asserting the privilege under Section
SECTION 7. EXCEPTIONS TO PRIVILEGE.
(a) There is no privilege against disclosure under Section 5 for a mediation
communication which is:
(1) in an agreement evidenced by a record authenticated by
all parties to the agreement;
(2) available to the public under [open records law] or that is made
during a session of a mediation which is open, or is required by law to
be open, to the public;
(3) a threat to inflict bodily injury;
(4) intentionally used to plan, attempt to commit, or commit a crime,
or conceal an ongoing crime or criminal activity;
(5) sought or offered to prove or disprove abuse, neglect, abandonment,
or exploitation in a proceeding in which a public agency is protecting
the interests of an individual protected by law; but this exception does
not apply where a [child protection] case is referred to participate in
mediation by a court and a public agency participates [, or a public agency
participates in the child protection mediation];
(6) sought or offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against a mediator in a proceeding; or
(7) sought or offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against a party, nonparty participant,
or representative of a party based on conduct occurring during a mediation.
(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 interest in protecting confidentiality,
and the mediation communication is sought or offered in:
(1) a court proceeding involving a felony; or
(2) a proceeding to prove a claim or defense under other law sufficient
to reform or avoid liability on a contract arising out of the mediation.
(c) Notwithstanding subsections 7(a)(7) and 7(b)(2), a mediator
may not be compelled to provide evidence of a mediation communication or
testify in such proceedings.
(d) 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.
SECTION 8. DISCLOSURE BY MEDIATOR.
(a) 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, except that a mediator may disclose:
(1) whether the mediation occurred or has terminated, whether
a settlement was reached, and attendance;
(2) as permitted under Section 7; or
(3) a mediation communication evidencing abuse, neglect, abandonment,
or exploitation of an individual to a public agency that protects against
(b) A report made in violation of subsection (a) may not be considered
by a court or other tribunal.
(c) A judicial officer acting in an official capacity is exempt from
the requirements of subsections (a) and (d) through (f).
[(d) Before accepting a mediation an individual who is requested to
(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 as soon as is practical
before accepting a mediation.]
[(e) A mediator shall disclose as soon as is practical any fact
described in subsection (a)(1) learned by the mediator after accepting
[(f) A mediator shall disclose the mediator’s qualifications to mediate
a dispute, if requested to do so by a party.]
SECTION 9. NONPARTY PARTICIPATION IN MEDIATION. An attorney or
other individual designated by a party may accompany that party and participate
in a mediation. A waiver of such participation given prior to the mediation
may be rescinded.
SECTION 10. ELECTRONIC SIGNATURES IN GLOBAL AND
NATIONAL COMMERCE ACT. The provisions of this [Act] governing
the legal effect, validity, or enforceability of electronic records or
signatures, and of contracts formed or performed with the use of such records
or signatures conform to the requirements of Section 102 of the Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. sec. 70002, and
supersede, modify, and limit the Electronic Signatures in Global and National
[SECTION 11. SUMMARY ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.
(a) Parties who have entered into a mediated settlement agreement evidenced
by a record that has been authenticated by the parties and their attorneys,
may [move] the court to enter a judgment in accordance with the mediated
settlement agreement, if:
(1) all parties to the mediated settlement agreement join in
(2) no litigation is pending on the subject matter of the mediation;
(3) all parties to the mediated settlement agreement are represented
by counsel at the time it is entered and the [motion] is filed;
(4) the mediated 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] before entry of judgment;
(6) the mediated settlement agreement does not relate to a divorce or
(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.]
[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.]
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
SECTION 15. APPLICATION TO EXISTING RELATIONSHIP.
a) This [Act] governs an agreement to mediate made on or after [the
effective date of this [Act]].
(b) On or after [a delayed date], this [Act] governs an agreement to
mediate whenever made.
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