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Uniform Mediation Act
Confidentiality is an essential aspect of the mediation process. Currently, there are significant efforts to create uniform guidelines and expectations for the parameters of confidentiality in mediation. The following Mediation Act is a result of the collaborative efforts of the Uniform Law Commission Drafting Committee and The American Bar Association Section of Dispute Resolution with the input of countless mediation organizations around the nation. Although this act does not represent the law of any one state, it does represent the leading thinking about the law of confidentiality in the field of mediation.

Uniform Mediation Act

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

SECTION 2. APPLICATION AND CONSTRUCTION. In applying and construing this [Act], consideration must be given to:
(1) the need 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;
(2) 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;
(3) the policy that the decision-making authority in the mediation process rests with the parties; and
(4) the need to promote uniformity of the law with respect to its subject matter among States that enact it.

SECTION 3. DEFINITIONS. In this [Act]:
(1) "Court" means [designate a court of competent jurisdiction in this State].
(2) "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.
(3) "Mediation communication" means a statement, whether oral, in a record, verbal, or nonverbal, that is made or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
(4) "Mediator" means an individual, of any profession or background, who conducts a mediation.
(5) "Nonparty participant" means a person, other than a party or mediator, that participates in a mediation.
(6) "Party" means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.
(7) "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.
(8) "Proceeding" means a legislative hearing or similar process, or a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery.
(9) "Record," except in the phrase "record of proceeding," 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.

(10) "Sign" includes to attach or logically associate an electronic sound, symbol, or process with a record with an intent to sign the record.

SECTION 4. SCOPE.
(a) Except as otherwise provided in subsection (b) or (c), this [Act] applies to a mediation in which the parties agree in a record to mediate or are required by statute or referred by a court, governmental entity, or arbitrator to mediate.
(b) This [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 the collective bargaining agreement, except that the [Act] applies to a mediation arising out of a dispute that has been filed with a public agency or court;
(3) involving parties who are all minors which is conducted under the auspices of a primary or secondary school or correctional institution; or
(4) conducted by a judicial officer who might make a ruling on the case or who is not prohibited by court rule from communicating with a court, agency or other authority as provided by Section 8(a).
(c) If the parties agree in advance that all or part of a mediation is not privileged, the privileges under Sections 5 through 7 do not apply to the mediation or part agreed upon. The agreement must be in a signed record or reflected in the record of a proceeding.
SECTION 5. CONFIDENTIALITY OF MEDIATION COMMUNICATIONS; PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY.
(a) A mediation communication is confidential and, if privileged, is not subject to discovery or admissible in evidence in a proceeding.
(b) In a proceeding, the following privileges apply:
(1) A 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.
(3) A mediator may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the mediator.
(4) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
(c) Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.
Legislative Note: The Act does not supersede existing state statutes that make mediators incompetent to testify, or that provide for costs and attorney fees to mediators who are wrongfully subpoenaed. See, e.g., Cal. Evid. Code § 703.5 (West 1994).

SECTION 6. WAIVER AND PRECLUSION OF PRIVILEGE.
(a) A privilege under Section 5 may be waived in a record or orally during a proceeding, if it is expressly waived by all parties to the mediation, and:
(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
(b) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under Section 5, to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(c) A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or conceal an ongoing crime or criminal activity may not assert a privilege under Section 5.
[(d) A person that violates Section 8 [(d) through (f)] is not precluded by the violation from asserting a privilege under Section 5.]

SECTION 7. EXCEPTIONS TO PRIVILEGE.
(a) There is no privilege against disclosure under Section 5 for a mediation communication that is:
(1) in an agreement evidenced by a record signed by all parties to the agreement;
(2) available to the public under [open records law] or made during a session of a mediation which is open, or is required by law to be open, to the public;
(3) a threat to inflict bodily injury;
(4) intentionally used to plan, attempt to commit or commit a crime, or conceal an ongoing crime or criminal activity;
(5) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party; but this exception does not apply where a [child protection] case is referred by a court to mediation and a public agency participates [, or a public agency participates in the [child protection] mediation];
(6) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or
(7) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation, except as otherwise provided in subsection (c).
(b) There is no privilege under Section 5 if a court, administrative agency, or arbitration panel finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in:
(1) a court proceeding involving a felony; or
(2) a proceeding to prove a claim or defense to reform or avoid liability on a contract arising out of the mediation, except as otherwise provided in subsection (c).
(c) A mediator may not be compelled to provide evidence of a mediation communication that is not privileged under subsection (a)(7) or (b)(2).
(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

SECTION 8. DISCLOSURE BY MEDIATOR.
(a) A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, but a mediator may disclose:
(1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;
(2) a mediation communication as permitted under Section 7; or
(3) a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment.
(b) A communication made in violation of subsection (a) may not be considered by a court or other tribunal.
(c) Subsection[s] (a) [and (d) through (f)] do[es] not apply to an individual acting as a judicial officer.
[(d) Before accepting a mediation an individual who is requested to serve as a mediator shall:
(1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a party or foreseeable participant in the mediation; and
(2) disclose as soon as is practical before accepting a mediation any such fact known.]
[(e) If a mediator learns any fact described in subsection (d)(1) after accepting a mediation, the mediator shall disclose as soon as is practicable.]
[(f) A mediator shall disclose the mediator's qualifications to mediate a dispute, if requested to do so by a party.]

SECTION 9. NONPARTY PARTICIPATION IN MEDIATION.
An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of participation given before the mediation may be rescinded.

For more information or to schedule an appointment please call Adam J. Berner at (212)721-7555 or (201)836-0666 or via email at Adam@MediationOffices.com.

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