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 10B 17, 2001

Approved by the American Bar Association

Philadelphia, Pennsylvania, February 4, 2002

Copyright 8 2001

By

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS DRAFTING COMMITTEE ON UNIFORM MEDIATION ACT:

MICHAEL B. GETTY, 1560 Sandburg Terrace, Suite 1104, Chicago, IL 60610, Chair

PHILLIP CARROLL, 120 E. Fourth Street, Little Rock, AR 72201

JOSE FELICIANO, 3200 National City Center, 1900 E. 9th Street, Cleveland, OH 44114-3485,

STANLEY M. FISHER, 1100 Huntington Building, 925 Euclid Avenue, Cleveland, OH

44115-1475, Enactment Coordinator

ROGER C. HENDERSON, University of Arizona, James E. Rogers College of Law, Mountain and Speedway Streets, Tucson, AZ 85721, Committee on Style Liaison

ELIZABETH KENT, P.O. Box 2560, Honolulu, HI, 96804

RICHARD C. REUBEN, University of Missouri-Columbia School of Law, Hulston Hall, Columbia, MO 65211, Associate Reporter

NANCY H. ROGERS, Ohio State University, Michael E. Moritz College of Law, 55 W. 12^th Avenue, Columbus, OH 43210, National Conference Reporter

FRANK E.A. SANDER, Harvard University Law School, Cambridge, MA 02138,

BYRON D. SHER, State Capitol, Suite 2082, Sacramento, CA 95814

MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401

JOAN ZELDON, D.C. Superior Court, 500 Indiana Ave., Washington, DC 20001

JOHN L. McCLAUGHERTY, P.O. Box 553, Charleston, WV 25322, President

LEON M. McCORKLE, JR., P.O. Box 387, Dublin, OH 43017-0387, Division Chair

ROBERTA COOPER RAMO, Sunwest Building, Suite 1000, 500 W. 4th Street, NW, Albuquerque, NM 87102

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman,

OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

211 E. Ontario Street, Suite 1300

Chicago, Illinois 60611

312/915-0195

www.nccusl.org

43266

ROBERTA COOPER RAMO, Co-Chair, Modrall, Sperling, Roehl, Harris & Sisk, P.A.,

Sunwest Building, Suite 1000, Albuquerque, NM 87102

JAMES DIGGS, PPG Industries, 1 PPG Place, Pittsburgh, PA 15272

JOSE FELICIANO, Baker & Hostetler, 3200 National City Center, 1900 East 9th St., Cleveland,

OH 44114

MICHAEL B. GETTY, 1560 Sandburg Terrace, Suite 1104, Chicago, IL 60610,

EMILY STEWART HAYNES, Supreme Court of Ohio, 30 E. Broad Street, Columbus, OH 43266, Reporting Coordinator

RICHARD C. REUBEN, University of Missouri-Columbia School of Law, Hulston Hall, Columbia, MO 65211, Reporter

NANCY H. ROGERS, Ohio State University, College of Law and Office of Academic Affairs,

203 Bricker Hall, 190 N. Oval Mall, Columbus, OH 43210, Coordinator, Faculty Advisory

FRANK E.A. SANDER, Harvard Law School, Cambridge, MA 02138

JUDITH SAUL, Community Dispute Resolution Center, 120 W. State Street., Ithaca, NY 14850

ANNICE M. WAGNER, Court of Appeals of the District of Columbia, 500 Indiana Ave., NW,

Washington, DC 20001

TABLE OF CONTENTS

PREFATORY NOTE

During the last thirty years the use of mediation has expanded beyond its century-long home in collective bargaining to become an integral and growing part of the processes of dispute resolution in the courts, public agencies, community dispute resolution programs, and the commercial and business communities, as well as among private parties engaged in conflict.

Public policy strongly supports this development. Mediation fosters the early resolution of disputes. The mediator assists the parties in negotiating a settlement that is specifically tailored to their needs and interests. The parties= participation in the process and control over the result contributes to greater satisfaction on their part. See Chris Guthrie & James Levin, A A Party Satisfaction@ Perspective on a Comprehensive Mediation Statute, 13 Ohio St. J. on Disp. Resol. 885 (1998). Increased use of mediation also diminishes the unnecessary expenditure of personal and institutional resources for conflict resolution, and promotes a more civil society. For this reason, hundreds of state statutes establish mediation programs in a wide variety of contexts and encourage their use. See Sarah R. Cole, Craig A. McEwen & Nancy H. Rogers, Mediation: Law, Policy, Practice App. B (2001 2d ed. and 2001 Supp.)(hereinafter, Cole et al.). Many States have also created state offices to encourage greater use of mediation. See, e.g., Ark. Code Ann. Section 16-7-101, et seq. (1995); Haw. Rev. Stat. Section 613-1, et seq. (1989); Kan. Stat. Ann. Section 5-501, et seq. (1996); Mass. Gen. Laws ch. 7, Section 51 (1998); Neb. Rev. Stat. Section 25-2902, et seq. (1991); N.J. Stat. Ann. Section 52:27E-73 (1994); Ohio Rev. Code Ann. Section 179.01, et seq. (West 1995); Okla. Stat. tit. 12, Section 1801, et seq. (1983); Or. Rev. Stat. Section 36.105, et seq. (1997); W. Va. Code Section 55-15-1, et seq. (1990).

These laws play a limited but important role in encouraging the effective use of mediation and maintaining its integrity, as well as the appropriate relationship of mediation with the justice system. In particular, the law has the unique capacity to assure that the reasonable expectations of participants regarding the confidentiality of the mediation process are met, rather than frustrated. For this reason, a central thrust of the Act is to provide a privilege that assures confidentiality in legal proceedings (see Sections 4-6). Because the privilege makes it more difficult to offer evidence to challenge the settlement agreement, the Drafters viewed the issue of confidentiality as tied to provisions that will help increase the likelihood that the mediation process will be fair. Fairness is enhanced if it will be conducted with integrity and the parties= knowing consent will be preserved. See Joseph B. Stulberg, Fairness and Mediation, 13 Ohio St. J. on Disp. Resol. 909 (1998); Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, 6 Harv. Neg. L. Rev. 1 (2001). The Act protects integrity and knowing consent through provisions that provide exceptions to the privilege (Section 6), limit disclosures by the mediator to judges and others who may rule on the case (Section 7), require mediators to disclose conflicts of interest (Section 9), and assure that parties may bring a lawyer or other support person to the mediation session (Section 10). In some limited ways, the law can also encourage the use of mediation as part of the policy to promote the private resolution of disputes through informed self-determination. See discussion in Section 2; see also Nancy H. Rogers & Craig A. McEwen, Employing the Law to Increase the Use of Mediation and to Encourage Direct and Early Negotiations, 13 Ohio St. J. on Disp. Resol. 831 (1998); Denburg v. Paker Chapin Flattau & Klimpl, 624 N.E.2d 995, 1000 (N.Y. 1993) (societal benefit in recognizing the autonomy of parties to shape their own solution rather than having one judicially imposed). A uniform act that promotes predictability and simplicity may encourage greater use of mediation, as discussed in part 3, below.

At the same time, it is important to avoid laws that diminish the creative and diverse use of mediation. The Act promotes the autonomy of the parties by leaving to them those matters that can be set by agreement and need not be set inflexibly by statute. In addition, some provisions in the Act may be varied by party agreement, as specified in the comments to the sections. This may be viewed as a core Act which can be amended with type specific provisions not in conflict with the Uniform Mediation Act.

The provisions in this Act reflect the intent of the Drafters to further these public policies. The Drafters intend for the Act to be applied and construed in a way to promote uniformity, as stated in Section, and also in such manner as to:

promote candor of parties through confidentiality of the mediation process, subject only to the need for disclosure to accommodate specific and compelling societal interests (see part 1, below);

encourage 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 (see part 2, below); and

advance the policy that the decision-making authority in the mediation process rests with the parties (see part 2, below).

Although the Conference does not recommend A purpose@ clauses, States that permit these clauses may consider adapting these principles to serve that function. Each is discussed in turn.

Candor during mediation is encouraged by maintaining the parties= and mediators= expectations regarding confidentiality of mediation communications. See Sections 4-6. Virtually all state legislatures have recognized the necessity of protecting mediation confidentiality to encourage the effective use of mediation to resolve disputes. Indeed, state legislatures have enacted more than 250 mediation privilege statutes. See Cole et al., supra, at apps. A and B. Approximately half of the States have enacted privilege statutes that apply generally to mediations in the State, while the other half include privileges within the provisions of statutes establishing mediation programs for specific substantive legal issues, such as employment or human rights. Id.

The Drafters recognize that mediators typically promote a candid and informal exchange regarding events in the past, as well as the parties= perceptions of and attitudes toward these events, and that mediators encourage parties to think constructively and creatively about ways in which their differences might be resolved. This frank exchange can be achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes. See, e.g., Lawrence R. Freedman and Michael L. Prigoff, Confidentiality in Mediation: The Need for Protection, 2 Ohio St. J. Disp. Resol. 37, 43-44 (1986); Philip J. Harter, Neither Cop Nor Collection Agent: Encouraging Administrative Settlements by Ensuring Mediator Confidentiality, 41 Admin. L. Rev. 315, 323-324 (1989); Alan Kirtley, The Mediation Privilege= s Transformation from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest, 1995 J. Disp. Resol. 1, 17; Ellen E. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85 Marquette L. Rev. 79 (2001). For a critical perspective, see generally Eric D. Green, A Heretical View of the Mediation Privilege, 2 Ohio St. J. on Disp. Resol. 1 (1986); Scott H. Hughes, The Uniform Mediation Act: To the Spoiled Go the Privileges, 85 Marquette L. Rev. 9 (2001). Such party-candor justifications for mediation confidentiality resemble those supporting other communications privileges, such as the attorney-client privilege, the doctor-patient privilege, and various other counseling privileges. See, e.g., Unif. R. Evid. R. 501-509 (1986); see generally Jack B. Weinstein, et. al, Evidence: Cases and Materials 1314-1315 (9th ed.1997); Developments in the Law B Privileged Communications, 98 Harv. L. Rev. 1450 (1985); Paul R. Rice, Attorney-Client Privilege in the United States, Section 2/1-2.3 (2d ed. 1999). This rationale has sometimes been extended to mediators to encourage mediators to be candid with the parties by allowing them to block evidence of their notes and other statements by mediators. See, e.g., Ohio Rev. Code Ann. Section 2317.023 (West 1996).

Similarly, public confidence in and the voluntary use of mediation can be expected to expand if people have confidence that the mediator will not take sides or disclose their statements, particularly in the context of other investigations or judicial processes. The public confidence rationale has been extended to permit the mediator to object to testifying, so that the mediator will not be viewed as biased in future mediation sessions that involve comparable parties. See, e.g., NLRB v. Macaluso, 618 F.2d 51 (9th Cir. 1980) (public interest in maintaining the perceived and actual impartiality of mediators outweighs the benefits derivable from a given mediator= s testimony). To maintain public confidence in the fairness of mediation, a number of States prohibit a mediator from disclosing mediation communications to a judge or other officials in a position to affect the decision in a case. Del. Code Ann. tit. 19, Section 712(c) (1998) (employment discrimination); Fla. Stat. Ann. Section 760.34(1) (1997) (housing discrimination); Ga. Code Ann. Section 8-3-208(a) (1990) (housing discrimination); Neb. Rev. Stat. Section 20-140 (1973) (public accommodations); Neb. Rev. Stat. Section 48-1118 (1993) (employment discrimination); Cal. Evid. Code Section 703.5 (West 1994). This justification also is reflected in standards against the use of a threat of disclosure or recommendation to pressure the parties to accept a particular settlement. See, e.g., Center for Dispute Settlement, National Standards for Court-Connected Mediation Programs (1994); Society for Professionals in Dispute Resolution, Mandated Participation and Settlement Coercion: Dispute Resolution as it Relates to the Courts (1991); see also Craig A. McEwen & Laura Williams, Legal Policy and Access to Justice Through Courts and Mediation, 13 Ohio St. J. on Disp. Resol. 831, 874 (1998).

A statute is required only to assure that aspect of confidentiality that relates to evidence compelled in a judicial and other legal proceeding. The parties can rely on the mediator= s assurance of confidentiality in terms of mediator disclosures outside the proceedings, as the mediator would be liable for a breach of such an assurance. See, e.g., Cohen v. Cowles Media Co, 501 U.S. 663 (1991) (First Amendment does not bar recovery against a newspaper= s breach of promise of confidentiality); Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973) (physician disclosure may be invasion of privacy, breach of fiduciary duty, breach of contract). Also, the parties can expect enforcement of their agreement to keep things confidential through contract damages and sometimes specific enforcement. The courts have also enforced court orders or rules regarding nondisclosure through orders striking pleadings and fining lawyers. See Section 8; see also Parazino v. Barnett Bank of South Florida, 690 So.2d 725 (Fla. Dist. Ct. App. 1997); Bernard v. Galen Group, Inc., 901 F. Supp. 778 (S.D.N.Y. 1995). Promises, contracts, and court rules or orders are unavailing, however, with respect to discovery, trial, and otherwise compelled or subpoenaed evidence. Assurance with respect to this aspect of confidentiality has rarely been accorded by common law. Thus, the major contribution of the Act is to provide a privilege in legal proceedings, where it would otherwise either not be available or would not be available in a uniform way across the States.

As with other privileges, the mediation privilege must have limits, and nearly all existing state mediation statutes provide them. Definitions and exceptions primarily are necessary to give appropriate weight to other valid justice system values, in addition to those already discussed in this Section. They often apply to situations that arise only rarely, but might produce grave injustice in that unusual case if not excepted from the privilege.

In this regard, the Drafters recognize that the credibility and integrity of the mediation process is almost always dependent upon the neutrality and the impartiality of the mediator. The provisions of this Act are not intended to provide the parties with an unwarranted means to bring mediators into the discovery or trial process to testify about matters that occurred during a court ordered or agreed mediation. There are of course exceptions and they are specifically provided for in Section 5(a)(1), (express waiver by the mediator) or pursuant to Section 6= s narrow exceptions such as 6(b)(1), (felony). Contrary use of the provisions of this Act to involve mediators in the discovery or trial process would have a destructive effect on the mediation process and would not be in keeping with the intent and purpose of the Act.

Finally, these exceptions need not significantly hamper candor. Once the parties and mediators know the protections and limits, they can adjust their conduct accordingly. For example, if the parties understand that they will not be able to establish in court an oral agreement reached in mediation, they can reduce the agreement to a record or writing before relying on it. Although it is important to note that mediation is not essentially a truth-seeking process in our justice system such as discovery, if the parties realize that they will be unable to show that another party lied during mediation, they can ask for corroboration of the statement made in mediation prior to relying on the accuracy of it. A uniform and generic privilege makes it easier for the parties and mediators to understand what law will apply and therefore to understand the coverage and limits of the Act, so that they can conduct themselves in a mediation accordingly.

Mediation is a consensual process in which the disputing parties decide the resolution of their dispute themselves with the help of a mediator, rather than having a ruling imposed upon them. The parties= participation in mediation, often accompanied by counsel, allows them to reach results that are tailored to their interests and needs, and leads to their greater satisfaction in the process and results. Moreover, disputing parties often reach settlement earlier through mediation, because of the expression of emotions and exchanges of information that occur as part of the mediation process.

Society at large benefits as well when conflicts are resolved earlier and with greater participant satisfaction. Earlier settlements can reduce the disruption that a dispute can cause in the lives of others affected by the dispute, such as the children of a divorcing couple or the customers, clients and employees of businesses engaged in conflict. See generally, Jeffrey Rubin, Dean Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate and Settlement 68-116 (2d ed. 1994) (discussing reasons for, and manner and consequences of conflict escalation). When settlement is reached earlier, personal and societal resources dedicated to resolving disputes can be invested in more productive ways. The public justice system gains when those using it feel satisfied with the resolution of their disputes because of their positive experience in a court-related mediation. Finally, mediation can also produce important ancillary effects by promoting an approach to the resolution of conflict that is direct and focused on the interests of those involved in the conflict, thereby fostering a more civil society and a richer discussion of issues basic to policy. See Nancy H. Rogers & Craig A. McEwen, Employing the Law to Increase the Use of Mediation and to Encourage Direct and Early Negotiations, 13 Ohio St. J. on Disp. Resol. 831 (1998); see also Frances McGovern, Beyond Efficiency: A Bevy of ADR Justifications (An Unfootnoted Summary), 3 Disp. Resol. Mag. 12-13 (1997); Wayne D. Brazil, Comparing Structures for the Delivery of ADR Services by Courts: Critical Values and Concerns, 14 Ohio St. J. on Disp. Resol. 715 (1999); Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2000) (discussion the causes for the decline of civic engagement and ways of ameliorating the situation).

State courts and legislatures have perceived these benefits, as well as the popularity of mediation, and have publicly supported mediation through funding and statutory provisions that have expanded dramatically over the last twenty years. See, Cole et al., supra 5:1-5:19; Richard C. Reuben, The Lawyer Turns Peacemaker, 82 A.B.A. J. 54 (Aug. 1996). The legislative embodiment of this public support is more than 2500 state and federal statutes and many more administrative and court rules related to mediation. See Cole et al, supra apps. A and B.

The primary guarantees of fairness within mediation are the integrity of the process and informed self-determination. Self-determination also contributes to party satisfaction. Consensual dispute resolution allows parties to tailor not only the result but also the process to their needs, with minimal intervention by the State. For example, parties can agree with the mediator on the general approach to mediation, including whether the mediator will be evaluative or facilitative. This party agreement is a flexible means to deal with expectations regarding the desired style of mediation, and so increases party empowerment. Indeed, some scholars have theorized that individual empowerment is a central benefit of mediation. See, e.g., Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation (1994).

Self-determination is encouraged by provisions that limit the potential for coercion of the parties to accept settlements, see Section 9(a), and that allow parties to have counsel or other support persons present during the mediation session. See Section 10. The Act promotes the integrity of the mediation process by requiring the mediator to disclose conflicts of interest, and to be candid about qualifications. See Section 9.

This Act is designed to simplify a complex area of the law. Currently, legal rules affecting mediation can be found in more than 2500 statutes. Many of these statutes can be replaced by the Act, which applies a generic approach to topics that are covered in varying ways by a number of specific statutes currently scattered within substantive provisions.

Existing statutory provisions frequently vary not only within a State but also by State in several different and meaningful respects. The privilege provides an important example. Virtually all States have adopted some form of privilege, reflecting a strong public policy favoring confidentiality in mediation. However, this policy is effected through more than 250 different state statutes. Common differences among these statutes include the definition of mediation, subject matter of the dispute, scope of protection, exceptions, and the context of the mediation that comes within the statute (such as whether the mediation takes place in a court or community program or a private setting).

Uniformity of the law helps bring order and understanding across state lines, and encourages effective use of mediation in a number of ways. First, uniformity is a necessary predicate to predictability if there is any potential that a statement made in mediation in one State may be sought in litigation or other legal processes in another State. For this reason, the UMA will benefit those States with clearly established law or traditions, such as Texas, California, and Florida, ensuring that the privilege for mediation communications made within those States is respected in other States in which those mediation communications may be sought. The law of privilege does not fit neatly into a category of either substance or procedure, making it difficult to predict what law will apply. See, e.g., U.S. v. Gullo, 672 F.Supp. 99 (W.D.N.Y. 1987) (holding that New York mediation-arbitration privilege applies in federal court grand jury proceeding); Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. App. 1992) (holding that Florida mediation privilege law applies in federal Jones Act claim brought in Florida court). Moreover, parties to a mediation cannot always know where the later litigation or administrative process may occur. Without uniformity, there can be no firm assurance in any State that a mediation is privileged. Ellen E. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85 Marquette L.Rev.79 (2001).

A second benefit of uniformity relates to cross-jurisdictional mediation. Mediation sessions are increasingly conducted by conference calls between mediators and parties in different States and even over the Internet. Because it is unclear which State= s laws apply, the parties cannot be assured of the reach of their home state= s confidentiality protections.

A third benefit of uniformity is that a party trying to decide whether to sign an agreement to mediate may not know where the mediation will occur and therefore whether the law will provide a privilege or the right to bring counsel or support person. Uniformity will add certainty on these issues, and thus allows for more informed party self-determination.

Finally, uniformity contributes to simplicity. Mediators and parties who do not have meaningful familiarity with the law or legal research currently face a more formidable task in understanding multiple confidentiality statutes that vary by and within relevant States than they would in understanding a Uniform Act. Mediators and parties often travel to different States for the mediation sessions. If they do not understand these legal protections, participants may react in a guarded way, thus reducing the candor that these provisions are designed to promote, or they may unnecessarily expend resources to have the legal research conducted.

The drafting of the Uniform Mediation Act comes at an opportune moment in the development of the law and the mediation field.

First, States in the past thirty years have been able to engage in considerable experimentation in terms of statutory approaches to mediation, just as the mediation field itself has experimented with different approaches and styles of mediation. Over time clear trends have emerged, and scholars and practitioners have a reasonable sense as to which types of legal standards are helpful, and which kinds are disruptive. The Drafters have studied this experimentation, enabling state legislators to enact the Act with the confidence that can only come from learned experience. See Symposium on Drafting a Uniform/Model Mediation Act, 13 Ohio St. J. on Disp. Resol. 787, 788 (1998).

Second, as the use of mediation becomes more common and better understood by policymakers, States are increasingly recognizing the benefits of a unified statutory environment for privilege that cuts across all applications. This modern trend is seen in about half of the States that have adopted statutes of general application, and these broad statutes provide guidance on effective approaches to a more general privilege. See, e.g., Ariz. Rev. Stat. Ann. Section 12-2238 (West 1993); Ark. Code Ann. Section 16-7-206 (1993); Cal. Evid. Code Section 1115, et seq. (West 1997); Iowa Code Section 679C.2 (1998); Kan. Stat. Ann. Section 60-452 (1964); La. Rev. Stat. Ann. Section 9:4112 (1997); Me. R. Evid. Section 408 (1993); Mass. Gen. Laws ch. 233, Section 23C (1985); Minn. Stat. Ann. Section 595.02 (1996); Neb. Rev. Stat. Section 25-2914 (1997); Nev. Rev. Stat. Section 48.109(3) (1993); N.J. Rev. Stat. Section 2A:23A-9 (1987); Ohio Rev. Code Ann. Section 2317.023 (West 1996); Okla. stat. tit. 12, Section 1805 (1983); Or. Rev. Stat. Ann. Section 36.220 (1997); 42 Pa. Cons. Stat. Ann. Section 5949 (1996); R.I. Gen. Laws Section 9-19-44 (1992); S.D. Codified Laws Section 19-13-32 (1998); Tex. Civ. Prac. & Rem. Code Section 154.053 (c) (1999); Utah Code Ann. Section 30-3-38(4) (2000); Va. Code Ann. Section 8.01-576.10 (1994); Wash. Rev. Code Section 5.60.070 (1993); Wis. Stat. Section 904.085(4)(a) (1997); Wyo. Stat. Ann. Section 1-43-103 (1991).

The Mediation Act results from an historic collaboration. The Uniform Law Commission Drafting Committee, chaired by Judge Michael B. Getty, was joined in the drafting of this Act by a Drafting Committee sponsored by the American Bar Association, working through its Section of Dispute Resolution, which was co-chaired by former American Bar Association President Roberta Cooper Ramo (Modrall, Sperling, Roehl, Harris & Sisk, P.A.) and Chief Justice Thomas J. Moyer of the Supreme Court of Ohio. The leadership of both organizations had recognized that the time was ripe for a uniform law on mediation. While both Drafting Committees were independent, they worked side by side, sharing resources and expertise in a collaboration that augmented the work of both Drafting Committees by broadening the diversity of their perspectives. See Michael B. Getty, Thomas J. Moyer & Roberta Cooper Ramo, Preface to Symposium on Drafting a Uniform/Model Mediation Act, 13 Ohio St. J. on Disp. Resol. 787 (1998). For instance, the Drafting Committees represented various contexts in which mediation is used: private mediation, court-related mediation, community mediation, and corporate mediation. Similarly, they also embraced a spectrum of viewpoints about the goals of mediation B efficiency for the parties and the courts, the enhancement of the possibility of fundamental reconciliation of the parties, and the enrichment of society through the use of less adversarial means of resolving disputes. They also included a range of viewpoints about how mediation is to be conducted, including, for example, strong proponents of both the evaluative and facilitative models of mediation, as well as supporters and opponents of mandatory mediation.

Finally, with the assistance of a grant from the William and Flora Hewlett Foundation, both Drafting Committees had substantial academic support for their work by many of mediation= s most distinguished scholars, who volunteered their time and energies out of their belief in the utility and timeliness of a uniform mediation law. These included members of the faculties of Harvard Law School, the University of Missouri-Columbia School of Law, the Ohio State University College of Law, and Bowdoin College, including Professors Frank E.A. Sander (Harvard Law School); Chris Guthrie, John Lande, James Levin, Richard C. Reuben, Leonard L. Riskin, Jean R. Sternlight (University of Missouri-Columbia School of Law); James Brudney, Sarah R. Cole, L. Camille Hébert, Nancy H. Rogers, Joseph B. Stulberg, Laura Williams, and Charles Wilson (Ohio State University College of Law); Jeanne Clement (Ohio State University College of Nursing); and Craig A. McEwen (Bowdoin College). The Hewlett support also made it possible for the Drafting Committees to bring noted scholars and practitioners from throughout the nation to advise the Committees on particular issues. These are too numerous to mention but the Committees especially thank those who came to meetings at the advisory group= s request, including Peter Adler, Christine Carlson, Jack Hanna, Eileen Pruett, and Professors Ellen Deason, Alan Kirtley, Kimberlee K. Kovach, Thomas J. Stipanowich, and Nancy Welsh.

Their scholarly work for the project examined the current legal structure and effectiveness of existing mediation legislation, questions of quality and fairness in mediation, as well as the political environment in which uniform or model legislation operates. See Frank E.A. Sander, Introduction to Symposium on Drafting a Uniform/Model Mediation Act, 13 Ohio St. J. on Disp. Resol. 791 (1998). Much of this work was published as a law review symposium issue. See Symposium on Drafting a Uniform/Model Mediation Act, 13 Ohio St. J. Disp. Resol. 787 (1998).

Finally, observers from a vast array of mediation professional and provider organizations also provided extensive suggestions to the Drafting Committees, including: the Association for Conflict Resolution (formerly the Society of Professionals in Dispute Resolution, Academy of Family Mediators and CRE/Net), National Council of Dispute Resolution Organizations, American Arbitration Association, Federal Mediation and Conciliation Service, Judicial Arbitration and Mediation Services, Inc. (JAMS), CPR Institute for Dispute Resolution, International Academy of Mediators, National Association for Community Mediation, and the California Dispute Resolution Council. Other official observers to the Drafting Committees included: the American Bar Association Section of Administrative Law and Regulatory Practice, American Bar Association Section of Litigation, American Bar Association Senior Lawyers Division, American Bar Association Section of Torts and Insurance Practice, American Trial Lawyers Association, Equal Employment Advisory Council, National Association of District Attorneys, and the Society of Professional Journalists.

Similarly, the Act also received substantive comments from several state and local Bar Associations, generally working through their ADR committees, including: the Alameda County Bar Association, the Beverly Hills Bar Association, the State Bar of California, the Chicago Bar Association, the Louisiana State Bar Association, the Minnesota State Bar Association, and the Mississippi Bar. In addition, the Committees= work was supplemented by other individual mediators and mediation professional organizations too numerous to mention.

Mediation often involves both parties and mediators from a variety of professions and backgrounds, many of who are not attorneys or represented by counsel. With this in mind, the Drafters sought to make the provisions accessible and understandable to readers from a variety of backgrounds, sometimes keeping the Act shorter by leaving some discretion in the courts to apply the provisions in accordance with the general purposes of the Act, delineated and expanded upon in Section 1 of this Prefatory Note. These policies include fostering prompt, economical, and amicable resolution, integrity in the process, self-determination by parties, candor in negotiations, societal needs for information, and uniformity of law.

The Drafters sought to avoid including in the Act those types of provisions that should vary by type of program or legal context and that were therefore more appropriately left to program-specific statutes or rules. Mediator qualifications, for example, are not prescribed by this Act. The Drafters also recognized that some general standards are often better applied through those who administer ethical standards or local rules, where an advisory opinion might be sought to guide persons faced with immediate uncertainty. Where individual choice or notice was important to allow for self-determination or avoid a trap for the unwary, such as for nondisclosure by the parties outside the context of proceedings, the Drafters left the matter largely to local rule or contract among the participants. As the result, the Act largely governs those narrow circumstances in which the mediation process comes into contact with formal legal processes.

Finally, the Drafters operated with respect for local customs and practices by using the Act to establish a floor rather than a ceiling for some protections. It is not the intent of the Act to preempt state and local court rules that are consistent with the Act, such as those well-established rules in Florida. See, for example, Fla.R.Civ.P. Rule 1.720; see also Sections 12 and 15.

Consistent with existing approaches in law, and to avoid unnecessary disruption, the Act adopts the structure used by the overwhelming majority of these general application States: the evidentiary privilege. However, many state and local laws do not conflict with the Act and would not be preempted by it. For example, statutes and court rules providing standards for mediators, setting limits of compulsory participation in mediation, and providing mediator qualifications would remain in force.

The matter may be less clear if the existing provisions relate to the mediation privilege. Legislative notes provide guidance on some key issues. Nevertheless, in order to achieve the simplicity and clarity sought by the Act, it will be important in each State to review existing privilege statutes and specify in Section 15 which will be repealed and which will remain in force.

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

SECTION 2. DEFINITIONS. In this [Act]:

(1) A 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) A 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) A Mediator@ means an individual who conducts a mediation.

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

(5) A Mediation party@ means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.

(6) A 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) A 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) A 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) A 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.

The emphasis on negotiation in this definition is intended to exclude adjudicative processes, such as arbitration and fact-finding, as well as counseling. It was not intended to distinguish among styles or approaches to mediation. An earlier draft used the word A conducted,@ but the Drafting Committees preferred the word A assistance@ to emphasize that, in contrast to an arbitration, a mediator has no authority to issue a decision. The use of the word A facilitation@ is not intended to express a preference with regard to approaches of mediation. The Drafters recognize approaches to mediation will vary widely.

Mediation communications are statements that are made orally, through conduct, or in writing or other recorded activity. This definition is aimed primarily at the privilege provisions of Sections 4-6. It is similar to the general rule, as reflected in Uniform Rule of Evidence 801, which defines a A statement@ as A an oral or written assertion or nonverbal conduct of an individual who intends it as an assertion.@ Most generic mediation privileges cover communications but do not cover conduct that is not intended as an assertion. Ark. Code Ann. Section 16-7-206 (1993); Cal. Evid. Code Section 1119 (West 1997); Fla. Stat. Ann. Section 44.102 (1999); Iowa Code Ann. Section 679C.3 (1998); Kan. Stat. Ann. Section 60-452a (1964) (assertive representations); Mass. Gen. Laws ch. 233, Section 23C (1985); Mont. Code Ann. Section 26-1-813 (1999); Neb. Rev. Stat. Section 25-2914 (1997); Nev. Rev. Stat. Section 25-2914 (1997) (assertive representations); N.C. Gen. Stat. 7A-38.1(1) (1995); N.J. Rev. Stat. Section 2A:23A-9 (1987); Ohio Rev. Code Ann. Section 2317.023 (West 1996); Okla. Stat. tit. 12, Section 1805 (1983); Or. Rev. Stat. Ann. Section 36.220 (1997); 42 Pa. Cons. Stat. Ann. Section 5949 (1996); R.I. Gen. Laws Section 9-19-44 (1992); S.D. Codified Laws Section 19-13-32 (1998); Va. Code Ann. Section 8.01-576.10 (1994); Wash. Rev. Code Section 5.60.070 (1993); Wis. Stat. Section 904.085(4)(a) (1997); Wyo. Stat. Ann. Section 1-43-103 (1991). The mere fact that a person attended the mediation B in other words, the physical presence of a person B is not a communication. By contrast, nonverbal conduct such as nodding in response to a question would be a A communication@ because it is meant as an assertion, however nonverbal conduct such as smoking a cigarette during the mediation session typically would not be a A communication@ because it was not meant by the actor as an assertion.

A mediator= s mental impressions and observations about the mediation present a more complicated question, with important practical implications. See Olam v. Congress Mortgage Co., 68 F.Supp. 2d 1110 (N.D. Cal. 1999). As discussed below, the mediation privilege is modeled after, and draws heavily upon, the attorney-client privilege, a strong privilege that is supported by well-developed case law. Courts are to be expected to look to that well developed body of law in construing this Act. In this regard, mental impressions that are based even in part on mediation communications would generally be protected by privilege.

More specifically, communications include both statements and conduct meant to inform, because the purpose of the privilege is to promote candid mediation communications. U.S. v. Robinson, 121 F.3d 911, 975 (5^th Cir., 1997). By analogy to the attorney-client privilege, silence in response to a question may be a communication, if it is meant to inform. U.S. v. White, 950 F.2d 426, 430 n.2 (7^th Cir., 1991). Further, conduct meant to explain or communicate a fact, such as the re-enactment of an accident, is a communication. See Weinstein= s Federal Evidence 503.14 (2000). Similarly, a client= s revelation of a hidden scar to an attorney in response to a question is a communication if meant to inform. In contrast, a purely physical phenomenon, such as a tattoo or the color of a suit of clothes, observable by all, is not a communication.

If evidence of mental impressions would reveal, even indirectly, mediation communications, then that evidence would be blocked by the privilege. Gunther v. U.S., 230 F.2d 222, 223-224 (D.C. Cir. 1956). For example, a mediator= s mental impressions of the capacity of a mediation participant to enter into binding mediated settlement agreement would be privileged if that impression was in part based on the statements that the party made during the mediation, because the testimony might reveal the content or character of the mediation communications upon which the impression is based. In contrast, the mental impression would not be privileged if it was based exclusively on the mediator= s observation of that party wearing heavy clothes and an overcoat on a hot summer day because the choice of clothing was not meant to inform. Darrow v. Gunn, 594 F.2d 767, 774 (9^th Cir. 1979).

There is no justification for making readily observable conduct privileged, certainly not more privileged than it is under the attorney-client privilege. If the conduct is seen in the mediation room, it can also be observed, even photographed, outside of the mediation room, as well as in other contexts. One of the primary reasons for making mediation communications privileged is to promote candor, and excluding evidence of a readily observable characteristic is not necessary to promote candor. In re Walsh, 623 F.2d 489, 494 (7^th Cir., 1980).

The provision makes clear that conversations to initiate mediation and other non-session communications that are related to a mediation are considered A mediation communications.@ Most statutes are silent on the question of whether they cover conversations to initiate mediation. However, candor during these initial conversations is critical to insuring a thoughtful agreement to mediate, and the Act therefore extends confidentiality to these conversations to encourage that candor.

The definition in Section 2(2) is narrowly tailored to permit the application of the privilege to protect communications that a party would reasonably believe would be confidential, such as the explanation of the matter to an intake clerk for a community mediation program, and communications between a mediator and a party that occur between formal mediation sessions. These would be communications A made for the purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.A This language protects the confidentiality of such a communication when doing so advances the underlying policies of the privilege, while at the same time gives the courts the latitude to restrict the application of the privilege in situations where such an application of the privilege would constitute an abuse. For example, an individual trying to hide information from a court might later attempt to characterize a call to an acquaintance about a dispute as an inquiry to the acquaintance about the possibility of mediating the dispute. This definition would permit the court to disallow a communication privilege, and admit testimony from that acquaintance by finding that the communication was not A made for the purposes of initiating considering, initiating, continuing, or reconvening a mediation or retaining a mediator.@

Responding in part to public concerns about the complexity of earlier drafts, the Drafting Committees also elected to leave the question of when a mediation ends to the sound judgment of the courts to determine according to the facts and circumstances presented by individual cases. See Bidwell v. Bidwell, 173 Or. App. 288 (2001) (ruling that letters between attorneys for the parties that were sent after referral to mediation and related to settlement were mediation communications and therefore privileged under the Oregon statute). In weighing language about when a mediation ends, the Drafting Committees considered other more specific approaches for answering these questions. One approach in particular would have terminated the mediation after a specified period of time if the parties failed to reach an agreement, such as the 10-day period specified in Cal. Evid. Code Section 1125 (West 1997) (general). However, the Drafting Committees rejected that approach because it felt that such a requirement could be easily circumvented by a routine practice of extending mediation in a form mediation agreement. Indeed, such an extension in a form agreement could result in the coverage of communications unrelated to the dispute for years to come, without furthering the purposes of the privilege.

Finally, this definition would also include mediation A briefs@ and other reports that are prepared by the parties for the mediator. Whether the document is prepared for the mediation is a crucial issue. For example, a tax return brought to a divorce mediation would not be a A mediation communication@ because it was not a A statement made as part of the mediation,@ even though it may have been used extensively in the mediation. However, a note written on the tax return to clarify a point for other participants would be a mediation communication. Similarly, a memorandum specifically prepared for the mediation by the party or the party= s representative explaining the rationale behind certain positions taken on the tax return would be a A mediation communication.@ Documents prepared for the mediation by expert witnesses attending the mediation would also be covered by this definition. See Section 4(b)(3).

Several points are worth stressing with regard to the definition of mediator. First, this definition should be read in conjunction with Section 9(c), which makes clear that the Act does not require that a mediator have a special qualification by background or profession. Second, this definition should be read in conjunction with the model language in Section 9(a) through (e) on disclosures of conflicts of interest. Finally, the use of the word A conducts@ is intended to be value neutral, and should not be read to express a preference for the manner by which mediations are conducted. Compare Leonard L. Riskin, Understanding Mediators= Orientations, Strategies, and Tactics: A Grid for the Perplexed, 1 Harv. Neg. L. Rev. 7 (1996) with Joseph B. Stulberg, Facilitative vs. Evaluative Mediator Orientations: Piercing the A Grid@ Lock, 24 Fla. St. U. L. Rev. 985 (1997)

This definition would cover experts, friends, support persons, potential parties, and others who participate in the mediation. The definition is pertinent to the privilege accorded nonparty participants in Section 4(b)(3), and to the ability of parties to bring attorneys or support persons in Section 10. In the event that an attorney is deemed to be a nonparty participant, that attorney would be constricted in exercising that right by ethical provisions requiring the attorney to act in ways that are consistent with the interests of the client. See Model Rule of Professional Conduct 1.3 (Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.); and Rule 1.6(a) (Confidentiality of Information. A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).).

The Act defines A mediation party@ to be a person who participates in a mediation and whose agreement is necessary to resolve the dispute. These limitations are designed to prevent someone with only a passing interest in the mediation, such as a neighbor of a person embroiled in a dispute, from attending the mediation and then blocking the use of information or taking advantage of rights meant to be accorded to parties. Such a person would be a non-party participant and would have only a limited privilege. See Section 4(b)(3). Similarly, counsel for a mediation party would not be a mediation party, because their agreement is not necessary to the resolution of the dispute.

Because of these structural limitations on the definition of parties, participants who do not meet the definition of A mediation party,@ such as a witness or expert on a given issue, do not have the substantial rights under additional sections that are provided to parties. Rather, these non-party participants are granted a more limited privilege under Section 4(b)(3). Parties seeking to apply restrictions on disclosures by such participants B including their attorneys and other representatives B should consider drafting such a confidentiality obligation into a valid and binding agreement that the participant signs as a condition of participation in the mediation.

A mediation party may participate in the mediation in person, by phone, or electronically. A person, as defined in Section 2(6), may participate through a designated agent. If the party is an entity, it is the entity, rather than a particular agent, that holds the privilege afforded in Sections 4-6.

Sections 2(6) adopts the standard language recommended by the National Conference of Commissioners of Uniform State Laws for the drafting of statutory language, and the term should be interpreted in a manner consistent with that usage.

Section 2(7) defines the proceedings to which the Act applies, and should be read broadly to effectuate the intent of the Act. It was added to allow the Drafters to delete repetitive language throughout the Act, such as judicial, administrative, arbitral, or other adjudicative processes, including related pre-hearing and post-hearing motions, conferences, and discovery, or legislative hearings or similar processes.

These Sections adopt standard language approved by the Uniform Law Conference that is intended to conform Uniform Acts with the Uniform Electronic Transactions Act (UETA) and its federal counterpart, Electronic Signatures in Global and National Commerce Act (E-Sign) (15 U.S.C 7001, etc seq. (2000).

Both UETA and E-Sign were written in response to broad recognition of the commercial and other use of electronic technologies for communications and contracting, and the consensus that the choice of medium should not control the enforceability of transactions. These Sections are consistent with both UETA and E-Sign. UETA has been adopted by the Conference and received the approval of the American Bar Association House of Delegates. As of December 2001, it had been enacted in more than 35 states. See also Section 11, Relation to Electronic Signatures in Global and National Commerce Act.

The practical effect of these provisions is to make clear that electronic signatures and documents have the same authority as written ones for purposes of establishing an agreement to mediate under Section 3(a), party opt-out of the mediation privilege under Section 3(c), and participant waiver of the mediation privilege under Section 5(a).

(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:

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

(B) a correctional institution for youths if all the parties are residents of 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.

The Act is broad in its coverage of mediation, a departure from the common state statutes that apply to mediation in particular contexts, such as court-connected mediation or community mediation, or to the mediation of particular types of disputes, such as worker= s compensation or civil rights. See, e.g., Neb. Rev. Stat. Section 48-168 (1993) (worker= s compensation); Iowa Code Section 216.15A (1999) (civil rights). Moreover, unlike many mediation privileges, it also applies in some contexts in which the Rules of Evidence are not consistently followed, such as administrative hearings and arbitration.

Whether the Act in fact applies is a crucial issue because it determines not only the application of the mediation privilege but also whether the mediator has the obligations regarding the disclosure of conflicts of interest and, if asked, qualifications in Section 9; is prohibited from making disclosures about the mediation to courts, agencies and investigative authorities in Section 7; and must accommodate requirements regarding accompanying individuals in Section 10.

Because of the breadth of the Act= s coverage, it is important to delineate its scope with precision. Section 3(a) sets forth three different mechanisms that trigger the Act= s coverage, and will likely cover most mediation situations that commonly arise. Section 3(b) on the other hand, carves out a series of narrow and specific exemptions from the Act= s coverage. Finally, Section 3(c) provides a vehicle through which parties who would be mediating in a context covered by Section 3(a) may A opt out@ of the Act= s protections and responsibilities. The central operating principle throughout this Section is that the Act should support, and guide, the parties= reasonable expectations about whether the mediations in which they are participating are included within the scope of the Act.

Where Section 3(a)(1) focuses on publicly referred mediations, the second triggering mechanism, Section 3(a)(2), furthers party autonomy by allowing mediation parties and the mediator to trigger the Act by agreeing to mediate in a record that is signed by the parties and by the mediator. A later note by one party that they agreed to mediate would not constitute a record of an agreement to mediate. In addition, the record must demonstrate the expectation of the mediation parties and the mediator that the mediation communications will have a privilege against disclosure.

Yet significantly, these individuals are not required to use any magic words to obtain the protection of the Act. See Haghighi v. Russian-American Broadcasting Co., 577 N.W.2d 927 (Minn.1998). The lack of a requirement for magic words tracks the intent to be inclusive and to embrace the many different approaches to mediation. Moreover, were magic words required, party and mediator expectations of confidentiality under the Act might be frustrated, since a mediation would only be covered by the Act if the institution remembered to include them in any agreement.

The phrase A privileged against disclosure@ clarifies the type of expectations that the record must demonstrate tin order to show an expectation of confidentiality in a subsequent legal setting. Mere generalized expectations of confidentiality in a non-legal setting are not enough to trigger the Act if the case does not fit under Sections 3(a)(1) or 3(a)(3). Take for example a dispute in a university between the heads of the Spanish and Latin departments that is mediated or A worked out informally@ with the assistance of the head of the French department, at the suggestion of the university provost. Such a mediation would not reasonably carry with it party or mediator expectations that the mediation would be conducted pursuant to an evidentiary privilege, rights of disclosure and accompaniment and the other protections and obligations of the Act. Indeed, some of the parties and the mediator may more reasonably expect that the mediation results, and even the underlying discussions, would be disclosed to the university provost, and perhaps communicated throughout the parties= respective departments and elsewhere on campus. By contrast, however, if the university has a written policy regarding the mediation of disputes that embraces the Act, and the mediation is specifically conducted pursuant to that policy, and the parties agree to participate in mediation in a record signed by the parties, then the parties would reasonably expect that the Act would apply and conduct themselves accordingly, both in the mediation and beyond.

The third triggering mechanism, Section 3(a)(3), focuses on individuals and organizations that provide mediation services and provides that the Act applies when the mediation is conducted by one who is held out as a mediator. For example, disputing neighbors who mediate with a volunteer at a community mediation center would be covered by the Act, since the center holds itself out as providing mediation services. Similarly, mediations conducted by a private mediator who advertises his or her services as a mediator would also be covered, since the private mediator holds himself or herself out to the public as a mediator. Because the mediator is publicly held out as a mediator, the parties may reasonably expect mediations they conduct to be conducted pursuant to relevant law, specifically the Act. By including those mediations conducted by private mediators who hold themselves out as mediators, the Act tracks similar doctrines regarding other professions. In other contexts, A holding out@ has included making a representation in a public manner of being in the business or having another person make that representation. See 18A Am. Jur.2d Corporations Section 271 (1985).

Mediations can be conducted by ombuds practitioners. See Standards for the Establishment and Operation of Ombuds Offices (August 2001). If such a mediation is conducted pursuant to one of these triggering mechanisms, such as a written agreement under Section 3(a)(2), it will be protected under the terms of the Act. There is no intent by the Drafters to exclude or include mediations conducted by an ombuds a priori. The terms of the Act determine applicability, not a mediator= s formal title.

Finally, on the issue of Section 3(a) inclusions into the Act, the Drafting Committees discussed whether it should cover the many cultural and religious practices that are similar to mediation and that use a person similar to the mediator, as defined in this Act. On the one hand, many of these cultural and religious practices, like more traditional mediation, streamline and resolve conflicts, while solving problems and restoring relationships. Some examples of these practices are Ho= oponopono, circle ceremonies, family conferencing, and pastoral or marital counseling. These cultural and religious practices bring richness to the quality of life and contribute to traditional mediation. On the other hand, there are instances in which the application of the Act to these practices would be disruptive of the practices and therefore undesirable. On balance, furthering the principle of self-determination, the Drafting Committees decided that those involved should make the choice to be covered by the Act in those instances in which other definitional requirements of Section 2 are met by entering into an agreement to mediate reflected by a record or securing a court or agency referral pursuant to Section 3(a)(1). At the same time, these persons could opt out the Act= s coverage by not using this triggering mechanism. This leaves a great deal of leeway, appropriately, with those involved in the practices.

Collective bargaining disputes are excluded because of the longstanding, solidified, and substantially uniform mediation systems that already are in place in the collective bargaining context. See Memorandum from ABA Section of Labor and Employment Law of the American Bar Association to Uniform Mediation Act Reporters 2 (Jan. 23, 2000) (on file with UMA Drafting Committees); Letter from New York State Bar Association Labor and Employment Law Section to Reporters, Uniform Mediation Act 2-4 (Jan. 21, 2000) (on file with UMA Drafting Committees). This exclusion includes the mediation of disputes arising under the terms of a collective bargaining agreement, as well as mediations relating to the formation of a collective bargaining agreement. By contrast, the exclusion does not include employment discrimination disputes not arising under the collective bargaining agreement as well as employment disputes arising after the expiration of the collective bargaining agreement. Mediations of disputes in these contexts remain within the protections and responsibilities of the Act.

Difficult issues arise in mediations that are conducted by judges during the course of settlement conferences related to pending litigation, and this Section excludes certain judicially conducted mediations from the Act. Some have the concern that party autonomy in mediation may be constrained either by the direct coercion of a judicial officer who may make a subsequent ruling on the matter, or by the indirect coercive effect that inherently inures from the parties= knowledge of the ultimate presence of that judge. See, e.g., James J. Alfini, Risk of Coercion Too Great: Judges Should Not Mediate Cases Assigned to Them For Trial, 6 Disp. Resol. Mag. 11 (Fall 1999), and Frank E.A. Sander, A Friendly Amendment, 6 Disp. Resol. Mag. 11 (Fall 1999).

This concern is further complicated by the variegated nature of judicial settlement conferences. As a general matter, judicial settlement conferences are typically conducted under court or procedural rules that are similar to Rule 16 of the Federal Rules of Civil Procedure, and have come to include a wide variety of functions, from simple case management to a venue for court-ordered mediations. See Mont. R. Civ. P., Rule 16(a). In situations in which a part of the function of judicial conferences is case management, the parties hardly have an expectation of confidentiality in the proceedings, even though there may be settlement discussions initiated or facilitated by the judge or judicial officer. In fact, such hearings frequently lead to court orders on discovery and issues limitations that are entered into the public record. In such circumstances, the policy rationales supporting the confidentiality privilege and other provisions of the Act are not furthered.

The Act recognizes the tension created by this wide variety of settlement functions by drawing a line with regard to those conferences that are covered by the Act and those that are not covered by the Act. The Act excludes those settlement conferences in which information from the mediation is communicated to a judge with responsibility for the case. This is consistent with the prohibition on mediator reports to courts in Section 7. The term A judge@ in Section 3(b)(3) includes magistrates, special masters, referees, and any other persons responsible for making rulings or recommendations on the case. However, the Act does not apply to a court mediator, or a mediator who contracts or volunteers to mediate cases for a court because they may not make later rulings on the case. Similarly mediations conducted by judges specifically and exclusively are assigned to mediate cases, so-called A buddy judges,@ and retired judges who return to mediate cases do not fall within the Section 3(b)(3) exemption because such mediators do not make later rulings on the case.

Local rules are usually not recognized beyond the court= s jurisdiction, and may not provide assurance of confidentiality if the mediation communications are sought in another jurisdiction, and if the jurisdiction does not permit recognize privilege by local rule.

The Act also exempts mediations between students conducted under the auspices of school programs because the supervisory needs of schools toward students, particularly in peer mediation, may not be consistent with the confidentiality provisions of the Act. For example, school administrators need to be able to respond to, and in a proceeding verify, legitimate threats to student safety or domestic violence that may surface during a mediation between students. See Memorandum from ABA Section of Dispute Resolution to Uniform Mediation Act Reporters (Nov. 15, 1999) (on file with UMA Drafting Committees). The law has A repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.@ Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508 (1969), citing Epperson v. Arkansas, 393 U.S. 97, 104 (1968) and Meyer v. Nebraska, 262 U.S. 390, 402 (1923).

This exemption does not include mediations involving a teacher, parent, or other non-student as such an exemption might preclude coverage of truancy mediation and other mediation sessions for which the privilege is pertinent

The Act also exempts programs involving youths at correctional institutions if the mediation parties are all residents of the institution. This is to facilitate and encourage mediation and conflict prevention and resolution techniques among those juveniles who have well-documented and profound needs in those areas. Kristina H. Chung, Kids Behind Bars: The Legality of Incarcerating Juveniles in Adult Jails, 66 Ind. L.J. 999, 1021 (1991). Exempting these programs serves the same policies as are served by the peer mediation exclusion for non-incarcerated youths. The Drafters do not intend to exclude cases where at least one party is not a resident, such as a class action suit against a non-resident in which the parties mediate or attempt to mediate the case.

This Section allows the parties to opt for a non-privileged mediation or mediation session by mutual agreement, and furthers the Act= s policy of party self-determination. If the parties so agree, the privilege sections of the Act do not apply, thus fulfilling the parties reasonable expectations regarding the confidentiality of that mediation or session. For example, parties in a sophisticated commercial mediation, who are represented by counsel, may see no need for a privilege to attach to a mediation or session, and may by express written agreement A opt out@ of the Act= s privilege provisions. Similarly, parties may also use this option if they wish to rely on, and therefore use in evidence, statements made during the mediation. It is the parties rather than the mediator who make this choice, although a mediator could presumably refuse to mediate a mediation or session that is not covered by this Act. Even if the parties do not agree in advance, the parties, mediator, and all nonparty participants can waive the privilege pursuant to Section 5. In this instance, however, the mediator and other participants can block the waiver in some respects.

If the parties want to opt out, they should inform the mediators or nonparty participants of this agreement, because without actual notice, the privileges of the Act still apply to the mediation communications of the persons who have not been so informed until such notice is actually received. Thus, for example, if a nonparty participant has not received notice that the opt-out has been invoked, and speaks during a mediation, that mediation communication is privileged under the Act. If, however, one of the parties or the mediator tells the nonparty participant that the opt-out has been invoked, the privilege no longer attaches to statements made after the actual notice has been provided, even though the earlier statements remain privileged because of the lack of notice.

The Act would apply to all mediations that fit the definitions of mediation by a mediator unless specifically excluded by the State adopting the Act. For example, a State may want to exclude international commercial conciliation, which is covered by specific statute in some States. See, e.g., N.C. Gen. Stat. Section 1-567.60 (1991); Cal. Civ. Pro. Section 1297.401 (West 1988); Fla. Stat. Ann. Section 684.10 (1986).

(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.

Sections 4 through 6 set forth the Uniform Mediation Act= s general structure for protecting the confidentiality of mediation communications against disclosure in later legal proceedings. Section 4 sets forth the evidentiary privilege, which provides that disclosure of mediation communications generally cannot be compelled in designated proceedings or discovery and results in the exclusion of these communications from evidence and from discovery if requested by any party or, for certain communications, by a mediator or nonparty participant as well, unless within an exception delineated in Section 6 applies or the privilege is waived under the provisions of Section 5. It further delineates the fora in which the privilege may be asserted. The term A proceeding@ is defined in Section 2(7). The provisions of Sections 4-6 may not be expanded by the agreement of the parties, but the protections may be waived under Section 5 or under Section 3(c).

Section 4(b) grants a privilege for mediation communications that, like other communications privileges, allows a person to refuse to disclose and to prevent other people from disclosing particular communications. See generally Strong, supra, at Section 72; Developments in the Law B Privileged Communications, 98 Harv. L. Rev. 1450 (1985). The Drafters considered several other approaches to mediation confidentiality B including a categorical exclusion for mediation communications, the extension of evidentiary settlement discussion rules to mediation, and mediator incompetency. Upon exhaustive study and consideration, however, each of these mechanisms proved either overbroad in that they failed to fairly account for interests of justice that might occasionally outweigh the importance of mediation confidentiality (categorical exclusion and mediator incompetency), underbroad in that they failed to meet the reasonable needs of the mediation process or the reasonable expectations of the parties in the mediation process (settlement discussions), or under-inclusive in that they failed to provide protection for all of those involved in the mediation process (mediator incompetency).

The Drafters ultimately settled on the use of the privilege structure, the primary means by which communications are protected at law, an approach that is narrowly tailored to satisfy the legitimate interests and expectations of participants in mediation, the mediation process, and the larger system of justice in which it operates. The privilege structure also provides greater certainty in judicial interpretation because of the courts= familiarity with other privileges, and is consistent with the approach taken by the overwhelming majority of legislatures that have acted to provide broad legal protections for mediation confidentiality. Indeed, of the 25 States that have enacted confidentiality statutes of general application, 21 have plainly used the privilege structure. Ariz. Rev. Stat. Ann. Section 12-2238 (West 1993); Ariz. Rev. Stat. Ann. Section 16-7-206 (1997); Iowa Code Section 679C.2 (1998); Kan. Stat. Ann. Section 60-452 (1964); La. Rev. St. Ann. Section 9:4112 (1997); Me. R. Evid. Section 408 (1997); Mass. Gen. Laws ch. 233, Section 23C (1985); Mont. Code Ann. Section 26-1-813 (1999); Nev. Rev. Stat. Section 48.109(3) (1993); Ohio Rev. Code Ann. Section 2317.023 (West 1996); Okla. stat. tit. 12, Section 1805 (1983); Or. Rev. Stat. Ann. Section 36.220 (1997); 42 Pa. Cons. Stat. Ann. Section 5949 (1996) (general); R.I. Gen. Laws Section 9-19-44 (1992); S.D. Codified Laws Section 19-13-32 (1998); Tex. Civ. Prac. & Rem. Code Section 154.053 (c) (1999); Utah Code Ann. Section 30-3-38(4) (2000); Va. Code Ann. Section 8.01-576.10 (1994); Wash. Rev. Code Section 5.60.070 (1993); Wis. Stat. Section 904.085(4)(a) (1997); Wyo. Stat. Section 1-43-103 (1991). At least one other has arguably used the privilege structure: See Olam v. Congress Mortgage Co., 68 F.Supp. 2d 1110 (N.D. Cal. 1999) (treating Cal. Evid. Code Section 703.5 (West 1994) and Cal. Evid. Code Section 1119, 1122 (West 1997) as a privilege).

That these privilege statutes also tend to be the more recent of mediation confidentiality statutory provisions suggests that privilege may also be seen as the more modern approach taken by state legislatures. See, e.g., Ohio Rev. Code. Ann. Section 2317.023 (West 1996); Fla. Stat. Ann. Section 44.102 (1999); Wash. Rev. Code Ann. Section 5.60.072 (West 1993); see generally, Cole et al., supra, at Section 9:10-9:17. Moreover, States have been even more consistent in using the privilege structure for mediation offered by publicly funded entities, such as court-connected and community mediation programs. See, e.g., Ariz. Rev. Stat. Ann. Section 25-381.16 (West 1977) (domestic court); Ark. Code. Ann. Section 11-2-204 (Arkansas Mediation and Conciliation Service) (1979); Fla. Stat. Ann. Section 44.201 (publicly established dispute settlement centers) (West 1998); 710 Ill. Comp. Stat . Section 20/6 (1987) (non-profit community mediation programs); Ind. Code Ann. Section 4-6-9-4 (West 1988) (Consumer Protection Division); Iowa Code Ann. Section 216.15B (West 1999) (civil rights commission); Minn. Stat. Ann. Section 176.351 (1987) (workers= compensation bureau); Cal. Evid. Code Section 1119, et seq. (West 1997); Minn. Stat. Ann. Section 595.02 (1996).

The privilege structure carefully balances the needs of the justice system against party and mediator needs for confidentiality. For this reason, legislatures and courts have used the privilege to provide the basis for protection for other forms of professional communications privileges, including attorney-client, doctor-patient, and priest-penitent relationships. See Unif. R. Evid. R. 510-510 (1986); Strong, supra, at tit. 5. Congress recently used this structure to provide for confidentiality in the accountant-client context as well. 26 U.S.C. Section 7525 (1998) (Internal Revenue Service Restructuring and Reform Act of 1998). Scholars and practitioners have joined legislatures in showing strong support for a mediation privilege. See, e.g., Kirtley, supra; Freedman and Prigoff, supra; Jonathan M. Hyman, The Model Mediation Confidentiality Rule, 12 Seton Hall Legis. J. 17 (1988); Eileen Friedman, Protection of Confidentiality in the Mediation of Minor Disputes, 11 Cap. U.L. Rev. 305 (1971); Michael Prigoff, Toward Candor or Chaos: The Case of Confidentiality in Mediation, 12 Seton Hall Legis. J. 1(1988). For a critical perspective, see generally Eric D. Green, A Heretical View of the Mediation Privilege, 2 Ohio St. J. on Disp. Resol. 1 (1986); Scott H. Hughes, A Closer Look: The Case for a Mediation Privilege Has Not Been Made, 5 Disp. Resol. Mag. 14 (Winter 1998).

The privilege applies to a broad array of A mediation communications@ including some communications that are not made during the course of a formal mediation session, such as those made for purposes of convening or continuing a mediation. See Reporter= s Notes to Section 2(2) for further discussion.

The privilege under Section 4 applies in most legal A proceedings@ that occur during or after a mediation covered by the Act. See Section 2(7). If the privilege is raised in a criminal felony proceeding, it is subject to a specialized treatment under Section 6(b)(1), and the Reporter= s Notes to that Section should be consulted for further clarification.

The words A is not subject to discovery or admissible in evidence@ in Section 4(a) make explicit that a court or other tribunal must exclude privileged communications that are protected under these sections, and may not compel discovery of them. Because the privilege is unfamiliar to many using mediation, this Section provides a description of the effect of the privilege provided in Sections 4(b), 5, and 6. It does not change the reach of the remainder of the Section.

As with other privileges, a mediation privilege operates to allow a person to refuse to disclose and to prevent another from disclosing particular communications. See generally Strong, supra, at Section 72; Developments in the Law B Privileged Communications, 98 Harv. L. Rev. 1450 (1985).

This blocking function is critical to the operation of the privilege. As discussed in more detail below, parties have the greatest blocking power and may block provision of testimony about or other evidence of mediation communications made by anyone in the mediation, including persons other than the mediator and parties. The evidence may be blocked whether the testimony is by another party, a mediator, or any other participant. However, if all parties agree that a party should testify about a party= s mediation communications, no one else may block them from doing so, including a mediator or nonparty participant.

Mediators may block their own provision of evidence, including their own testimony and evidence provided by anyone else of the mediator= s mediation communications, even if the parties consent. Nonetheless, the parties= consent is required to admit the mediator= s provision of evidence, as well as evidence provided by another regarding the mediator= s mediation communications.

Finally, a nonparty participant may block evidence of that individual= s mediation communication regardless of who provides the evidence and whether the parties or mediator consent. Once again, nonetheless, the nonparty participant may not provide such evidence if the parties do not consent. This is consistent with fixing the limits of the privilege to protect the expectations of those persons whose candor is most important to the success of the mediation process.

A critical component of the Act= s general rule is its designation of the holder B i.e., the person who is eligible to raise and waive the privilege.

This designation brings both clarity and uniformity to the law. Statutory mediation privileges are somewhat unusual among evidentiary privileges in that they often do not specify who may hold and/or waive the privilege, leaving that to judicial interpretation. See, e.g., 710 Ill. Comp. Stat. Section 20/6 (1987) (community dispute resolution centers); Ind. Code Section 20-7.5-1-13 (1987) (university employee unions); Iowa Code Section 679.12 (1985) (general); Ky. Rev. Stat. Ann. Section 336.153 (1988) (labor disputes); 26 Me. Rev. Stat. Ann. Section 1026 (1999) (university employee unions); Mass. Gen. Laws ch. 150, Section 10A (1985) (labor disputes).

Those statutes that designate a holder tend to be split between those that make the parties the only holders of the privilege, and those that also make the mediator a holder. Compare Ark. Code Ann. Section 11-2-204 (1979) (labor disputes); Fla. Stat. Ann. Section 61.183 (1996) (divorce); Kan. Stat. Ann. Section 23-605 (1999) (domestic disputes); N.C. Gen. Stat. Section 41A-7(d) (1998) (fair housing); Or. Rev. Stat. Ann. Section 107.785 (1995) (divorce) (providing that the parties are the sole holders) with Ohio Rev. Code Ann. Section 2317.023 (West 1996) (general); Wash. Rev. Code Ann. Section 7.75.050 (1984) (dispute resolution centers (making the mediator an additional holder in some respects).

The Act adopts an approach that provides that both the parties and the mediators may assert the privilege regarding certain matters, thus giving weight to the primary concern of each rationale. See Ohio Rev. Code Ann. Section 2317.023 (West 1996) (general); Wash. Rev. Code Section 5.60.070 (1993) (general). In addition, the Act provides a limited privilege for nonparty participants, as discussed in Section (c) below.

The mediation privilege of the parties draws upon the purpose, rationale, and traditions of the attorney-client privilege, in that its paramount justification is to encourage candor by the mediation parties, just as encouraging the client= s candor is the central justification for the attorney-client privilege. See Paul R. Rice, Attorney Client Privilege in the United States 2.1-2.3 (2d ed. 1999).

The analysis for the parties as holders appears quite different at first examination from traditional communications privileges because mediations involve parties whose interests appear to be adverse. However, the law of attorney-client privilege has considerable experience with situations in which multiple-client interests may conflict, and those experiences support the analogy of the mediation privilege to the attorney-client privilege. For example, the attorney-client privilege has been recognized in the context of a joint defense in which interests of the clients may conflict in part and yet one may prevent later disclosure by another. See Raytheon Co. v. Superior Court, 208 Cal. App.3d 683, 256 Cal. Rptr. 425 (1989); United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979), cert denied, 444 U.S. 898 (1979); Visual Scene, Inc. v. Pilkington Bros., PLC, 508 So.2d 437 (Fla. App. 1987); but see Gulf Oil Corp. v. Fuller, 695 S.W.2d 769 (Tex. App. 1985) (refusing to apply the joint defense doctrine to parties who were not directly adverse); see generally Patricia Welles, A Survey of Attorney-Client Privilege in Joint Defense, 35 U. Miami L. Rev. 321 (1981). Similarly, the attorney-client privilege applies in the insurance context, in which an insurer generally has the right to control the defense of an action brought against the insured, when the insurer may be liable for some or all of the liability associated with an adverse verdict. Desriusseaux v. Val-Roc Truck Corp., 230 A.D.2d 704 (N.Y. Supreme Ct. 1996); Paul R. Rice, Attorney-Client Privilege in the United States, 4:30-4:38 (2d ed. 1999).

It should be noted that even if the mediator loses the privilege to block or assert a privilege, the parties may still come forward and assert their privilege, thus blocking the mediator who has lost the privilege from providing testimony about the affected mediation. This Section should be read in conjunction with 9(d) below.

Mediators are made holders with respect to their own mediation communications, so that they may participate candidly, and with respect to their own testimony, so that they will not be viewed as biased in future mediations, as discussed further in the Reporter= s Prefatory Note. As noted above in Section 4(a)(2) above and in commentary to Section 9(d) below, even if the mediator loses the privilege to block or assert a privilege, the parties may still come forward and assert their privilege.

In addition, the Act adds a privilege for the nonparty participant, though limited to the communications by that individual in the mediation. See 5 U.S.C. Section 574(a)(1). The purpose is to encourage the candid participation of experts and others who may have information that would facilitate resolution of the case. This would also cover statements prepared by such persons for the mediation and submitted as part of it, such as experts= reports. Any party who expects to use such an expert report prepared to submit in mediation later in a legal proceeding would have to secure permission of all parties and the expert in order to do so. This is consistent with the treatment of reports prepared for mediation as mediation communications. See Section 2(2).

As a practical matter, a person who holds a mediation privilege can only assert the privilege if that person knows that evidence of a mediation communication will be sought or offered at a proceeding. This presents no problem in the usual case in which the subsequent proceeding arises because of the failure of the mediation to resolve the dispute because the mediation party would be one of the parties to the proceeding in which the mediation communications are being sought. To guard against the unusual situation in which a party or mediator may wish to assert the privilege, but is unaware of the necessity, the parties and mediator may wish to contract for notification of the possible use of mediation information, as is a practice under the attorney-client privilege for joint defense consultation. See Paul R. Rice, et. al., Attorney-Client Privilege in the United States Section 18-25 (2d ed. 1999) (attorney client privilege in context of joint representation).

This provision acknowledges the importance of the availability of relevant evidence to the truth-seeking function of courts and administrative agencies, and makes clear that relevant evidence may not be shielded from discovery or ad