February 2001 Draft of the Uniform Mediation Act

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UNIFORM MEDIATION ACT

Interim Draft

February 20, 2001

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

Act.

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

parties;

(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

perceivable form.

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;

or

(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

participant.

(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

5.

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

such mistreatment.

(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

serve 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 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

a mediation.]

[(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

Commerce Act.

[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

the [motion];

(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;

and

(6) the mediated settlement 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.]

[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

hereby repealed:

(1) …

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.