Legislation: Where the Uniform Mediation Act Stands in the States (Web)
June 16, 2005
The Uniform Mediation Act, constructed by drafting committees from the National Conference of Commissioners on Uniform State Laws and the American Bar Association’s Section of Dispute Resolution, as well as legal academics, is an attempt to bring uniformity to mediation across the country. A primary purpose of the Act is to provide “a privilege that assures confidentiality in legal proceedings.” Providing this privilege promotes full disclosure of facts to the mediator by all parties and helps bring a higher level of success and party satisfaction to all mediations. Achieving a higher level of success will promote greater community confidence in the mediation process which should result in more disputes being resolved by mediation.
The UMA drafters hoped the Act would promote several themes. Besides the uniform practice of mediation, the drafters wanted the UMA to encourage candor. Section Four creates a privilege that provides confidentiality, except for rare exceptions, throughout the mediation process. Confidentiality encourages parties to speak candidly, which is essential to successful mediation. The drafters also tried to “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.” These policies and principles should provide higher participant satisfaction levels as well as higher success levels. The drafters also wanted to advance the policy that the authority to make decisions concerning the dispute lies in the hands of the parties, not the mediator. The mediator is just there to facilitate the process. Many of these themes are reflected throughout Sections 4-6 of the UMA.
A review of official state websites and www.nccusl.org by CPR staff shows that the Uniform Mediation Act currently is being considered in Vermont, New York, Minnesota, Massachusetts, and Connecticut. New Mexico has not introduced the UMA, but has introduced a less comprehensive but similar bill.
Eight states already have enacted the Uniform Mediation Act, led by Nebraska in May 2003. Illinois followed nearly a month later, while New Jersey, Ohio, Iowa, Washington, Indiana, and the District of Columbia all enacted it during the last two years.
Although they did not adopt the UMA, Delaware, Florida, Montana, Nevada, Oregon, and Wyoming have adopted similar bills. Virginia adopted a similar bill before the UMA was finalized. (Virginia’s statutory scheme is available on the state’s Department of Dispute Resolution Services Web page at http://www.courts.state.va.us/drs/main.htm.)
Florida’s statute §44.406 provides confidentiality and allows for many of the same UMA exceptions, however, those who “knowingly and willfully” disclose mediation communications will be liable for damages. The remedies provided by the statute include equitable relief, compensatory damages, attorney’s fees, mediator’s fees, and costs incurred in the mediation. The Florida rules are available at the state courts’ ADR page: http://www.flcourts.org/gen_public/adr/chapter44.shtml.
Several of the Act’s sections provide options. In section 6(a)(7), the Act exempts from privilege statements made to “prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party…” and then allows each state to add circumstances when this rule would not apply. In other words, Section 6(a)(7) creates an exemption to the privilege Section 4 creates unless the state names circumstances in which the privilege still applies.
According to the state Web site, in Nebraska, the Act was passed without the Legislature providing exceptions to section 6(a)(7). Under the version of the UMA passed in New Jersey, communications would still be privileged if “the Division of Youth and Family Services participated in the mediation.” All other UMA bills, enacted or introduced, have similar provisions exempting statements made when a state agency is a party to the proceeding.
Section 9(g) of the UMA contains another optional provision that allows states to choose whether to insert language that would allow parties to agree to let a mediator hear a case when evidence indicates that his or her impartiality may be called into question. Of the states that have passed or are considering the Act, according to state Web sites and www.nccusl.org, New Jersey, Washington, Vermont, and New York either have opted out of the optional language or propose to do so, thereby preventing parties from consenting to have their cases heard by potentially partial mediators. Nebraska, Illinois, Ohio, Iowa, Minnesota, Indiana, Massachusetts and the District of Columbia have passed or have introduced a version of the UMA that inserts the optional provision allowing parties to consent when evidence indicates that a mediator may not be impartial.