Minnesota State Bar Association
Footnotes appear at the end of this document, and as links within the text.

October 7, 1999

NCCUSL AND ABA DRAFTING COMMITTEES ON UNIFORM MEDIATION ACT
c/o
The Honorable Michael B. Getty
Chair, Uniform Mediation Act Drafting Committee
National Conference of Commissioners on Uniform State Laws
211 East Ontario Street, Suite 1300
Chicago, IL 60611

Ms. Nancy H. Rogers
Platt Professor of Law and Vice-President
Ohio State University
Office of Academic Affairs
203 Bricker Hall
190 N. Oval Mall
Columbus, Ohio 43210

Mr. Richard C. Reuben
Harvard Law School
506 Pound Hall
Cambridge, MN 02138

Re: Uniform Mediation Act

Dear Judge Getty, Professor Rogers, Mr. Reuben, and Other Members of the UMA Drafting Committees:

As Chairs of the Conflict Management and Dispute Resolution Section ("CMDR" or "Commander") and the Ethics Committee of the CMDR Section of the Minnesota State Bar Association, we are submitting this commentary as our current thinking on the Uniform Mediation Act. The CMDR Section is a large, active section of the Minnesota State Bar Association, whose membership is primarily experienced ADR practitioners, many of whom are seasoned trial lawyers and judges, although section membership is not restricted to lawyers. The CMDR Ethics Committee has met for many hours discussing the Uniform Mediation Act. We benefitted greatly from Richard Reuben's thorough discussion of the history and language in the draft proposal at a luncheon meeting and later as a telephonic speaker at a section meeting. He has not been part of our deliberations, however, and of course, bears no responsibility for our views.

Overview
Most of our dialogue has focused on the Confidentiality provisions. While we appreciate the desire to keep the act simple, we have concluded that the duty and protection of confidentiality should be treated differently for disputants than for mediators. Since the core principle of mediation is self-determination, it makes sense that disputants would hold a privilege, waiveable if all disputants agree. With relatively minor revisions, discussed in more detail below, we endorse the draft proposal's approach to disputant confidentiality and the exceptions thereto. As for mediator confidentiality, however, we believe the approach needs to be far more restrictive than the current draft proposal. After considering several possible approaches, we recommend a combination of testamentary incapacity and evidentiary exclusion with two narrow exceptions. We also propose amending Section 3 to permit mediators to provide statutorily-mandated reports as opposed to testimony. Finally, we recommend against inclusion of the concepts proposed in Section 5 for expedited enforcement of agreements to mediate and mediated settlement agreements.

Disputant Confidentiality
We recommend that Section 2(a) be amended to include many of the exceptions from existing Section 2(c) but made applicable only to the disputants. Because the many exceptions to the disputants' privilege provide for testimony about most criminal behavior that results in significant harm, we believe that the privilege should apply in all criminal proceedings, and not just criminal misdemeanor matters. Because we regard an individual mediation as the disputants' process, we accept most of the exceptions included in the current draft proposal. The amended Section 2(a) would read as follows:

Mediator Confidentiality
In regard to mediator testimony and participation in discovery, protection of the mediation process requires a very restrictive approach. Mediation is, by its nature, different from litigation. While we appreciate that there is no research demonstrating that participants in mediation would be less forthright or would refuse to participate without the assurance of confidentiality, common sense and experience with settlement negotiations dictates that participants in mediation feel free to be forthright, to "try on" ideas that they may later reject and to share information they might not otherwise share without risk that their communications could be used against them. Participants in mediation are appropriately encouraged to adopt a different mind set than in court. Mediation should not be regarded as an evidence-producing forum, when its very purpose is to provide values and opportunities not available in an evidence-producing forum. Most mediators find the notion that they could be a "reliable witness" abhorrent to the core of their function and the ethical principles they have embraced.

The privilege structure proposed in the current draft proposal would put individual mediators in the awkward position of having to choose whether to waive the privilege. The exceptions are understandable if one looks at mediation from the standpoint of a judge wanting the most reliable evidence available, but not acceptable from the vantage point of their ultimate impact on the process and how it is viewed. The privilege structure, waiveable by the disputants and mediator, does not adequately protect the mediation process, which does not belong to the disputants or to any single mediator.

Mediators are required to be impartial facilitators, safeguarding the process for both the disputants before them and for others who may consider mediation in the future. A statutory scheme that requires or allows a mediator to testify undermines the core values of self-determination and mediator impartiality. A mediator's testimony will inevitably favor one party, and will shift some of the responsibility for the outcome of the case to the mediator, subtly changing the role of the mediator from facilitator to decisionmaker. The disputant not favored by the testimony is bound to feel betrayed by both the mediator and the process.

Also, the nature of a mediator's role limits the reliability of a mediator's testimony. As facilitator of a process, the mediator is not focused on the same information a reporter might focus on, nor is the mediator taking extensive notes. Indeed, taking notes may interfere with the safety and effectiveness of the process. People who are very "present" with others often notice that they have little memory of the interchange afterwards. Without accurate notes and a different focus, how could a mediator provide reliable evidentiary detail?

The long-term impact of various approaches to confidentiality may be impossible to measure empirically, because once people learn that impartial mediators may become witnesses, it may not be possible to find a sample of people who trust assurances of mediator confidentiality. In that case, mediation will be accurately viewed as a mere arm of the court system, as opposed to a better way. Even if people continue to use mediation, it will be with a different attitude and for a more limited purpose, and the opportunity to offer the public the significant advantages and values of the mediation forum will have been lost.

We therefore recommend that: 1) compelled participation in discovery or testimony by the mediator be strongly limited by both testamentary incapacity and evidentiary and discovery exclusions, not subject to waiver; 2) the protection against compelled discovery or testimony by the mediator apply in both civil and criminal proceedings with only two listed exceptions: a) threat of imminent bodily harm; and b) complaints brought by disputants against mediators; and 3) that the issue of voluntary disclosure or mandated reports by the mediator be addressed only in section 3 of the Act (to keep the issue of voluntary disclosure distinct from the issue of compelled discovery or testimony).

Accordingly, Section 2(b) should be deleted in its entirety and replaced by:

Section 2(c) would be deleted and current section 2(d) would be renumbered as 2(c) without change of text.

 

Section 3 should be amended to read as follows:

Section 5
Finally, we oppose the inclusion of the yet-to-be-drafted proposed section 5. There is value in the deliberativeness required to formalize a mediated settlement agreement into a court order, and it is too early in the development of the field to standardize a process for expedited enforcement. In light of the proliferation of pro se litigants, courts may independently develop means to formalize negotiated settlements expeditiously, whether they were reached through mediation or negotiation without a mediator.

For your convenience, attached is a copy of our proposed revised Sections 2 and 3. On behalf of CMDR, we want to thank the Commission for soliciting comments from the field and look forward to continued dialogue on this proposal.

Sincerely,

Jennelle Soderquist
CMDR Section Chair

Rebecca M. Picard
CMDR Ethics Committee Chair

 

Footnotes
1. We have deleted the word "another" to make it clear that threats of suicide or self-mutilation are included in the exception.

2. The purpose of adding knowingly is to prevent the unwitting expansion of this exception to open the door to testimony about issues discussed in mediation which unbeknownst to the disputants, may constitute a crime. Persons engaging in strict liability and regulatory crimes, for example, may be unaware of the standards they are violating. In such cases, evidence of the crime would exist outside of the mediation room. On the other hand, co-conspirators in a price fixing scheme discussed in a "mediation" would be knowingly and purposefully using the mediation forum as part of their plan and would fall under this exception. If there ultimately is a "catch-all" exception such as the revised "manifest injustice" exception included here as exception 8, this exception for knowingly using the mediation to commit a crime will not be necessary.

3. The slight change in wording is intended to avoid misunderstandings about whether the public agency "initiated" the proceeding, and to clarify that the only classes of persons included are those protected against abuse or neglect, so no one argues that this applies to EEOC and other claims. Moreover, If there is ultimately a catch-all exception such as "manifest injustice," this exception may be eliminated altogether.

4. This amended language is intended to carry out the intent of the drafters to keep the "manifest injustice" exception narrow. We also believe that the catch-all manifest injustice exception, if retained, should be the last listed exception.

5. We have deleted the word "another" to make it clear that threats of suicide or self-mutilation are included in the exception.

6. Requiring that the disputants agree to disclosure to third persons at the outset of the process is consistent with ethical standards requiring mediators to set forth the breadth and limitations of confidentiality at the outset of the process.


APPENDIX: Minnesota State Bar Association, Conflict Management and Dispute Resolution Section, Ethics Committee

Proposed Revised Provisions to UMA Draft Sections 2 & 3

SECTION 2: CONFIDENTIALITY: PROTECTION AGAINST COMPELLED DISCLOSURE; WAIVER.

(a) A disputant may refuse to disclose, and prevent any other person from disclosing, mediation communications in a civil, juvenile, criminal misdemeanor, arbitration, or administrative proceeding. Those rights may be waived, but only if waived by all disputants expressly or through conduct inconsistent with the continued recognition of those rights. There is no protection under this subsection:

(b) A mediator is incompetent to testify or provide discovery about mediation communications in civil, juvenile, criminal, arbitration, or administrative proceedings, except:

(c) Information otherwise admissible or subject to discovery does not become inadmissible or protected from disclosure solely by reason of its use in mediation.

 

SECTION 3. CONFIDENTIALITY: PROHIBITION AGAINST DISCLOSURE BY A MEDIATOR.

A mediator may not:

unless all participants in the mediation expressly agree otherwise in writing at the beginning of the mediation process.

There is no protection under this section for: (1) mediation communications that threaten to cause imminent bodily injury or (2) reports required by law to be made to an entity charged by law to: (a) oversee professional misconduct; or (b) protect a child or other member of a class of individuals protected by the law from abuse or neglect.