A PUBLIC DISCUSSION of the Uniform Mediation Act (UMA), a model act that would standardize confidentiality provisions governing mediations that now vary widely among states, will be held next month at the Franklin Pierce Law Center.

The program, organized by the NHBA's Alternative Dispute Resolution Section, will introduce the UMA to Bar members, legislators and the public. Featured as a guest speaker will be Judge Michael Getty, who chaired the committee that wrote the model law, which was endorsed earlier this year by the American Bar Association's House of Delegates and the National Conference of Commissioners for Uniform State Laws (NCUSL).

"The purpose of this meeting is to begin a discussion as to whether New Hampshire should adopt this act," said Peter Y. Wolfe, chair of the ADR Section and coordinator of the courts' mediation programs. "There are two good reasons to adopt it," he said. "The UMA creates a mediator privilege that protects communications during the dispute-resolution process. And second, having a uniform act across the country would mean mediators would be acting under the same parameters no matter where the mediation was held." According to NCUSL, there are more than 2,500 statutes affecting mediation nationwide.

Judge Getty, of Chicago, a retired judge and private mediator who chaired the UMA drafting committee, will speak at the program to be held Thursday, Oct. 10, from 1:00 to 3:30 p.m. at the Rich Room of the Franklin Pierce Law Center. The program is free of charge and a reception will follow, sponsored by the law firm of Sheehan Phinney Bass + Green.

Wolfe said members of the House Judiciary Committee will be specifically invited to the program, with the hopes of encouraging lawmakers to introduce a version of the model act. The UMA has already been introduced in New York, Vermont, Nebraska, Oklahoma and South Carolina.

Acknowledging that there are serious differences of opinion in the mediation community and among lawyers over some provisions of the act, Wolfe and the ADR Section have posted several key documents at www.nhbar.org related to the act:

• The final version of the Model Act, with explanatory commentary from the drafting committee;

• Two articles from the Marquette Law Review by knowledgeable commentators: The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability? by Ellen E. Deason, Associate Professor, University of Illinois College of Law; and Uniform Mediation Act: To the Spoiled Go the Privileges by Scott H. Hughes, Assistant Professor of Law, University of New Mexico School of Law.

The following is a summary description of the UMA, prepared by the National Conference of Commissioners on Uniform State Laws (NCUSL).

Mediation is a process by which a third party facilitates communication and negotiation between parties to a dispute to assist them in reaching a voluntary agreement resolving that dispute. Because it is a voluntary process, and because of the relatively low costs associated with mediation versus a more formal legal proceeding or even an arbitration, mediation has become one of the most ubiquitous forms of dispute resolution in America today. Mediation is available in a variety of contexts, and state law has adopted various situation-specific rules to cope with the growth in the use of mediation. The widespread success of mediation as a form of dispute resolution has led to some problems, however, in that over 2500 separate state statutes affect mediation proceedings in some manner. In many cases, mediating parties cannot be sure which laws might apply to their efforts (especially in a multi-state context). This complexity is especially troublesome when it undermines one of the most important factors promoting mediation as a means of dispute resolution, namely the parties' ability to depend on the confidentiality of the proceeding, and their power to walk away without prejudice if an agreement cannot be voluntarily reached.

Promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 2001, the Uniform Mediation Act (UMA) is intended to address this core concern about the confidentiality of mediation proceedings. The result of a unique joint drafting effort between NCCUSL and the American Bar Association through its Dispute Resolution Section, the UMA is intended as a statute of general applicability that will apply to almost all mediations, except those involving collective bargaining, minors in a primary or secondary school peer review context, prison inmate mediation, and proceedings conducted by judicial officers who might rule in a dispute or who are not prohibited by court rule from disclosing mediation communications with a court, agency, or other authority.

The UMA's prime concern is keeping mediation communications confidential. Parties engaged in a mediation, as well as non-party participants, must be able to speak with full candor for a mediation to be successful and for a settlement to be voluntary. For this reason, the central rule of the UMA is that a mediation communication is confidential, and if privileged, is not subject to discovery or admission into evidence in a formal proceeding [see Sec. 5(a)]. In proceedings following a mediation, a party may refuse to disclose, and prevent any other person from disclosing, a mediation communication. Mediators and non-party participants may refuse to disclose their own statements made during mediation, and may prevent others from disclosing them, as well. Thus, for a person's own mediation communication to be disclosed in a subsequent hearing, that person must agree and so must the parties to the mediation. Waiver of these privileges must be in a record or made orally during a proceeding to be effective. There is no waiver by conduct.

As is the case with all general rules, there are exceptions. First, it should be noted that the privilege extends only to mediation communications, and not the underlying facts of the dispute. Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery because of its use in mediation. A party that discloses a mediation communication and thereby prejudices another person in a proceeding is precluded from asserting the privilege to the extent necessary for the prejudiced person to respond. A person who intentionally uses a mediation to plan or attempt to commit a crime, or to conceal an ongoing crime, cannot assert the privilege.

Also, there is no assertable privilege against disclosure of a communication made during a mediation session that is open to the public, that contains a threat to inflict bodily injury, that is sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding where a child or adult protective agency is a party, that would prove or disprove a claim of professional misconduct filed against a mediator, or against a party, party representative, or non-party participant based on conduct during a mediation. If a court, administrative agency, or arbitration panel finds that the need for the information outweighs the interest in confidentiality in a felony proceeding, or a proceeding to prove a claim of defense to reform or avoid liability on a contract arising out of the mediation, there is no privilege.

The Uniform Mediation Act is meant to have broad application, while at the same time preserving party autonomy. While a mediation proceeding subject to the Act can result from an agreement of the parties, or be required by statute, a government entity, or as part of an arbitration, the Act allows parties to opt out of the confidentiality and privilege rules described above. Also, the Act does not prescribe qualifications or other professional standards for mediators, allowing parties (and potentially states) to make that determination. The Act generally prohibits a mediator, other than a judicial officer, from submitting a report, assessment, evaluation, finding, or other communication to a court agency, or other authority that may make a ruling on the dispute that is the subject of the mediation. The mediator may report the bare facts that a mediation is ongoing or has concluded, who participated, and, mediation communications evidencing abuse, neglect, or abandonment, or, other non-privileged mediation matters. The Act also contains model provisions calling for a mediator to disclose conflicts of interest before accepting a mediation (or as soon as practicable after discovery). His or her qualifications as a mediator must be disclosed to any requesting party to the dispute.

The Uniform Mediation Act will further the goals of alternative dispute resolution by promoting candor of the parties by fostering prompt, economical, and amicable resolution of disputes, by retaining decision-making authority with the parties, and by promoting predictability with regard to the process and the level of confidentiality that can be expected by participants.

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