Where am I Mediating?

  A)    Within the US

         i)   Uniform Mediation Act

  B)    International

         i)   EU Directive

  C)    Additional Resources

a) Within the US

Mediation is available in a wide variety of contexts, and state law has adopted various situation-specific rules to cope with the growth in the use of mediation.  The widespread success of mediation as a form of dispute resolution has led to some problems, however, in that over 2500 separate state statutes affect mediation proceedings in some manner.  In many cases, mediating parties cannot be sure which laws might apply to their efforts (especially in a multi-state context).

i)  Uniform Mediation Act (UMA)

The National Conference of Commissioners on Uniform State Laws (NCCUSL) in 2001 promulgated, the Uniform Mediation Act (UMA). The fundamental rule of the UMA is that a mediation communication is confidential, and if privileged, is not subject to discovery or admission into evidence in a formal proceeding [see Sec. 5(a)].  

Current legal rules on mediation can be found in more than 2,500 state and federal statutes; more than 250 of these deal with issues of confidentiality and privileges alone. Uniformity of the law brings order and understanding across state lines and without uniformity, there can be no firm assurance in any state that a mediation is privileged. The UMA establishes a privilege of confidentiality for mediators and participants that prohibits what is said during mediation from being used in later legal proceedings.

As is the case with all general rules, there are exceptions.  These exceptions include, for example, threats made to inflict bodily harm or other violent crime, when parties attempt to use mediation to plan or commit a crime, when the information is needed to prove or disprove allegations of child abuse or neglect, or when the information is needed to prove or disprove a claim or complaint of professional misconduct by a mediator.

The Uniform Mediation Act is meant to have broad application, while at the same time preserving party autonomy.  While a mediation proceeding subject to the Act can result from an agreement of the parties, or be required by statute, a government entity, or as part of an arbitration, the Act allows parties to opt out of the confidentiality and privilege rules described above.

The Uniform Mediation Act was promulgated by the National Commission on Uniform State 7. Laws in 2003. The text of the Act, commentary on its provisions, and a list of state legislatures that have considered, adopted or rejected the Act is available here. >Access the Uniform Mediation Act

b) International

 ii)  EU Directive

On May 21, 2008, the European Parliament enacted a Directive to encourage the use of mediation in civil and commercial matters, and to make uniform throughout the European Union the legal status of certain attributes of that practice.

[T]he sovereign states who are members of the European Union have agreed to grant to a European Parliament the power to issue “Directives,” which are statements of political or governmental objectives that each of the sovereign states constituting the Union must thereafter achieve by enacting laws that are consistent with those objectives.

[I]n the case of the ADR Directive, the members of the European Union must, within 30 months of passage of the Directive, enact their own laws whose provisions are consistent with the stated provisions in the Directive; but each state is free to do so pursuant to laws of its own making.

•  Key provisions of the Directive include:

Scope: The United Kingdom and Ireland have voluntarily agreed to be bound, and Denmark has exempted itself. Consequently, all states within the EU except Denmark are bound.

Further, the Directive only applies to cross-border disputes and only to civil and commercial matters. Thus, matters that arise internally, for example,  between two French companies or between two German companies, are unaffected by the Directive. The Directive also excludes disputes sounding in family law and community law.The Directive does not apply to administrative actions; to matters in which the state itself may be liable; and to any efforts by courts to settle matters that are before it.

Status of Agreements Achieved Through Mediation and of Agreements to Mediate: The Directive requires states to provide for enforcement of agreements that result from mediation. This is particularly useful in a region of many languages and laws, almost all of whose civil justice systems are enshrined in a Civil Code. Each Civil Code will now grant judges the power to recognize settlement agreements obtained through mediation to be enforceable contracts.

Confidentiality: Article Seven of the Directive addresses the confidentiality of mediation processes and provides: “Mediators and those administering mediation shall not be compelled to give evidence in civil and commercial judicial proceedings or in arbitration "except in limited circumstances”.

c) Additional Resources

The New EU Directive on Mediation: First Insights By Association for International Arbitration

The information and resources on this website should not be construed as legal advice or opinion, or as a substitute for the advice of counsel.