In 1985, the Massachusetts legislature enacted a statute creating a privilege for mediation communications.
As it turned out, despite the good intentions of its makers, it proved to be a deeply flawed statute. It fails to specify exceptions to privilege or identify how or by whom the privilege could be waived. It creates uncertainties about what kind of mediation communications are protected from disclosure, since the language suggests that pre-mediation communications may not be covered, particularly if there is no written contract between mediator and parties. It is also not clear from the language of the statute whether the law prohibits disclosure of out-of-court statements.
Controversially, the statute applies only to mediations conducted by mediators as the statute defines them:
…a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.
This definition, as even a superficial reading reveals, is vague, raising more questions than it answers. It is also arbitrary and baseless: the qualifications for mediators shoehorned into the statute — the 30 hours of training, four years of professional experience, and three years in existence for a dispute resolution organization — were plucked from thin air by the drafters.
Over 20 years later, in September 2006, a group of mediators convened at Suffolk University Law School to address these statutory shortcomings and consider whether the Uniform Mediation Act might be a better choice for Massachusetts practitioners. Calling ourselves the MassUMA Working Group, we met numerous times between September 2006 and April 2009 to discuss the UMA and consider whether to adapt it to meet the needs of Massachusetts mediators and consumers of mediation services. The UMA specifies the parameters of privilege, protecting mediation communications from the first phone call to the mediator’s office to the final hand shake. It distinguishes among mediators, parties, and non-party participants for purposes of determining how privilege may be waived, and it specifies exceptions. It also leaves decisions about disclosure of statements outside of court – confidentiality – in the hands of the parties. Finally, the UMA avoids the definitional pitfalls of the Massachusetts statute, defining a mediator merely as “an individual who conducts a mediation”. Among our group, the UMA had supporters (a sizeable majority) and detractors (a vocal and concerned minority).
Regrettably, despite the arduous efforts over many long months of the Working Group and the several subcommittees convened to address specific issues, the Working Group, unable to reach consensus, agreed last month to disband and put its efforts on hold for now .
What happened? A detailed post-mortem I leave in the hands of our field’s historians. But other fracture points appeared, apart from the obvious division between supporters and critics of the UMA. Among the several causes of impasse was this: the Working Group was stymied by its inability to agree upon a definition of mediator, since many could not accept a statute that did not specify minimum qualifications for mediators and that defined a mediator simply as one “who conducts a mediation”. The minority view, held by me and a handful of others, was to accept the UMA’s definition and take up the discussion of credentialing in a different venue. The great majority of my colleagues preferred to graft the old definition (despite its demonstrated shortcomings) onto the UMA, with some small changes, including increasing the number of hours of training specified from 30 to 40. That they did so in the face of evidence that these arbitrary requirements have no empirical basis is something that I still can not understand.
Taking time off to regroup and rethink though makes sense, given how divided we remained at the end and how many serious questions were left unresolved. Change of this magnitude comes slowly. There is always next time, and ultimately we will get there – through a carefully designed process, the full engagement and participation of all affected communities across the Commonwealth, and with informed deliberation.
Time, I hope, will bring clarity to all of us, and perhaps, dare I say it, a change of mind.
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