Uniform Mediation Act

Share:

Drafted by the

NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR
ENACTMENT IN ALL THE STATES

at its

ANNUAL CONFERENCE MEETING IN ITS
ONE-HUNDRED-AND-TENTH YEAR

WHITE SULPHUR SPRINGS, WEST
VIRGINIA AUGUST 10&endash;17, 2001

WITHOUT PREFATORY NOTE AND
COMMENTS

COPYRIGHT © 2001 by NATIONAL
CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS

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

SECTION 2. DEFINITIONS.
In this [Act]:

(1) “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.

(2) “Mediation communication” means a
statement, whether oral or in a record or verbal or nonverbal, that
occurs during a mediation or is made for purposes of considering,
conducting, participating in, initiating, continuing, or reconvening
a mediation or retaining a mediator.

(3) “Mediator” means an individual who
conducts a mediation.

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

(5) “Mediation party” means a person that
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) “Proceeding” means:

(A) a judicial, administrative, arbitral,
or other adjudicative process, including related pre-hearing and
post-hearing motions, conferences, and discovery; or

(B) a legislative hearing or similar
process.

(8) “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.

(9) “Sign” means:

(A) to execute or adopt a tangible symbol
with the present intent to authenticate a record; or

(B) to attach or logically associate an
electronic symbol, sound, or process to or with a record with the
present intent to authenticate a record.

SECTION 3. SCOPE.

(a) Except as otherwise provided in
subsection (b) or (c), this [Act] applies to a mediation in
which:

(1) the mediation parties are required to
mediate by statute or court or administrative agency rule or referred
to mediation by a court, administrative agency, or
arbitrator;

(2) the mediation parties and the
mediator agree to mediate in a record that demonstrates an
expectation that mediation communications will be privileged against
disclosure; or

(3) the mediation parties use as a
mediator an individual who holds himself or herself out as a
mediator, or the mediation is provided by a person that holds itself
out as providing mediation.

(b) The [Act] does not apply to a
mediation:

(1) relating to the establishment,
negotiation, administration, or termination of a collective
bargaining relationship;

(2) relating to a dispute that is pending
under or is part of the processes established by a collective
bargaining agreement, except that the [Act] applies to a mediation
arising out of a dispute that has been filed with an administrative
agency or court;

(3) conducted by a judge who might make a
ruling on the case; or

(4) conducted under the auspices
of:

i) a primary or secondary school if all
the parties are students or

ii) a correctional institution for youths
if all the parties are residents that institution.

(c) If the parties agree in advance in a
signed record, or a record of proceeding reflects agreement by the
parties, that all or part of a mediation is not privileged, the
privileges under Sections 4 through 6 do not apply to the mediation
or part agreed upon. However, Sections 4 through 6 apply to a
mediation communication made by a person that has not received actual
notice of the agreement before the communication is made.

SECTION 4. PRIVILEGE AGAINST DISCLOSURE;
ADMISSIBILITY; DISCOVERY.

(a) Except as otherwise provided in
Section 6, a mediation communication is privileged as provided in
subsection (b) and is not subject to discovery or admissible in
evidence in a proceeding unless waived or precluded as provided by
Section 5.

(b) In a proceeding, the following
privileges apply:

(1) A mediation 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, and may prevent any other person from
disclosing a mediation communication of the mediator.

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

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

SECTION 5. WAIVER AND PRECLUSION OF
PRIVILEGE.

(a) A privilege under Section 4 may be
waived in a record or orally during a proceeding if it is expressly
waived by all parties to the mediation 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 that discloses or makes a
representation about a mediation communication which prejudices
another person in a proceeding is precluded from asserting a
privilege under Section 4, but only to the extent necessary for the
person prejudiced to respond to the representation or
disclosure.

(c) A person that intentionally uses a
mediation to plan, attempt to commit or commit a crime, or to conceal
an ongoing crime or ongoing criminal activity is precluded from
asserting a privilege under Section 4.

SECTION 6. EXCEPTIONS TO
PRIVILEGE.

(a) There is no privilege under Section 4
for a mediation communication that is:

(1) in an agreement evidenced by a record
signed by all parties to the agreement;

(2) available to the public under [insert
statutory reference to open records act] or made during a session of
a mediation which is open, or is required by law to be open, to the
public;

(3) a threat or statement of a plan to
inflict bodily injury or commit a crime of violence;

(4) intentionally used to plan a crime,
attempt to commit a crime, or to conceal an ongoing crime or ongoing
criminal activity;

(5) sought or offered to prove or
disprove a claim or complaint of professional misconduct or
malpractice filed against a mediator;

(6) except as otherwise provided in
subsection (c), sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against a
mediation party, nonparty participant, or representative of a party
based on conduct occurring during a mediation; or

(7) sought or offered to prove or
disprove abuse, neglect, abandonment, or exploitation in a proceeding
in which a child or adult protective services agency is a party,
unless the

[Alternative A: [State to insert, for
example, child or adult protection] case is referred by a court to
mediation and a public agency participates.]

[Alternative B: public agency
participates in the [State to insert, for example, child or adult
protection] mediation].

(b) There is no privilege under Section 4
if a court, administrative agency, or arbitrator 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 that the
mediation communication is sought or offered in:

(1) a court proceeding involving a felony
[or misdemeanor]; or

(2) except as otherwise provided in
subsection (c), a proceeding to prove a claim to rescind or reform or
a defense to avoid liability on a contract arising out of the
mediation.

(c) A mediator may not be compelled to
provide evidence of a mediation communication referred to in
subsection (a)(6) or (b)(2).

(d) If a mediation communication is not
privileged under subsection (a) or (b), only the portion of the
communication necessary for the application of the exception from
nondisclosure may be admitted. Admission of evidence under subsection
(a) or (b) does not render the evidence, or any other mediation
communication, discoverable or admissible for any other
purpose.

SECTION 7. PROHIBITED MEDIATOR
REPORTS.

(a) Except as required in subsection (b),
a mediator may not make a report, assessment, evaluation,
recommendation, finding, or other communication regarding a mediation
to a court, administrative agency, or other authority that may make a
ruling on the dispute that is the subject of the
mediation.

(b) A mediator may disclose:

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

(2) a mediation communication as
permitted under Section 6; or

(3) a mediation communication evidencing
abuse, neglect, abandonment, or exploitation of an individual to a
public agency responsible for protecting individuals against such
mistreatment.

(c) A communication made in violation of
subsection (a) may not be considered by a court, administrative
agency, or arbitrator.

SECTION 8. CONFIDENTIALITY.

Unless subject to the [insert statutory
references to open meetings act and open records act], mediation
communications are confidential to the extent agreed by the parties
or provided by other law or rule of this State.

SECTION 9. MEDIATOR’S DISCLOSURE OF
CONFLICTS OF INTEREST; BACKGROUND.

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

(2) disclose any such known fact to the
mediation parties as soon as is practical before accepting a
mediation.

(b) If a mediator learns any fact
described in subsection (a)(1) after accepting a mediation, the
mediator shall disclose it as soon as is practicable.

(c) At the request of a mediation party,
an individual who is requested to serve as a mediator shall disclose
the mediator’s qualifications to mediate a dispute.

(d) A person that violates subsection
[(a) or (b)][(a), (b), or (g)] is precluded by the violation from
asserting a privilege under Section 4.

(e) Subsections (a), (b), [and] (c),
[and] [(g)] do not apply to an individual acting as a judge.

(f) This [Act] does not require that a
mediator have a special qualification by background or
profession.

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

SECTION 10. PARTICIPATION IN
MEDIATION.

An attorney or other individual
designated by a party may accompany the party to and participate in a
mediation. A waiver of participation given before the mediation may
be rescinded.

SECTION 11. RELATION TO ELECTRONIC
SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.

This [Act] modifies, limits, or
supersedes the federal Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. Section 7001 et seq., but this [Act] does not
modify, limit, or supersede Section 101(c) of that Act or authorize
electronic delivery of any of the notices described in Section 103(b)
of that Act.

SECTION 12. UNIFORMITY OF APPLICATION AND
CONSTRUCTION.

In applying and construing this [Act],
consideration must be given to the need to promote uniformity of the
law with respect to its subject matter among States that enact
it.

SECTION 13. 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 14. EFFECTIVE DATE.

This [Act] takes effect
………………. .

SECTION 15. REPEALS.

The following acts and parts of acts are
hereby repealed:

(1)

(2)

(3)

SECTION 16. APPLICATION TO EXISTING
AGREEMENTS OR REFERRALS.

(a) This [Act] governs a mediation
pursuant to a referral or 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.