An Act To Enact the Uniform Mediation Act
Maine Legislature, Session 121, LD 1295
Committee: Judiciary
Sponsors: MARTIN, DOUGLASS, GAGNON, FAIRCLOTH, NORBERT

Legislative Document 
No. 1295 
S.P.426 
In Senate, March 11, 2003 
An Act To Enact the Uniform Mediation Act 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Senator MARTIN of Aroostook. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Senators: DOUGLASS of Androscoggin, GAGNON of Kennebec, 
Representatives: FAIRCLOTH of Bangor, NORBERT of Portland. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
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 
"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 
Page l-LR0464(1) 
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? , 
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 F1attau & 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 conf identiali ty of the 
mediation process, subject only to the need for disclosure 
to accommodate specific and compelling societal interests 
(see part 1, below); 
encourage 
amicable 
principles 
the policy of fostering prompt, economical, and 
resolution 
of 
disputes 
in 
accordance 
with 
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 
"purpose" 
clauses, States that permit these clauses may consider adapting 
these principles to serve that function. Each is discussed in 
turn. 
1. Promoting candor 
Candor dur ing 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. ~ 
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, Confidentiplity 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, 
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 Ouest 
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. aI, 
Evidence: 
Cases 
and 
Materials 
1314-1315 
(9th 
ed.1997); 
Developments in the Law - 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, 
F.2d 
(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, 
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)(I), 
(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. 
2. Encouraging resolution in accordance with other principles 
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 Confl ict: 
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, l3 
Ohio 
St. 
J. 
on Disp. 
Resol. 
(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, 
A.B.A. 
J. 
(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 aI, 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 counselor other 
support persons present during the mediation session. See Section 
10. The Act promotes the integrity of the mediation process by 
requ~r~ng the mediator to disclose conflicts of interest, and to 
be candid about qualifications. See Section 9. 
3. Importance of uniformity. 
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 liMA 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, 
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?, 
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 counselor 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 
prov1s1ons 
are 
designed to 
promote, or they may unnecessarily expend resources to have the 
legal research conducted. 
4. Ripeness of a uniform law. 
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, 
(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.1. 
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). 
5. A product of a consensual process. 
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, 
communi ty 
mediation, 
and 
corporate 
mediation. Similarly, they also embraced a spectrum of viewpoints 
about the goals of mediation - 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 Hebert, 
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 I 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 
structur~ 
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, 
Ohio St. J. Disp. Resol. 
(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 
Page ll-LR0464(I) 
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. 
6. Drafting philosophy. 
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 
Page l2-LR0464(l) 
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. 
Sec. I. 14 MRSA Pt. 8 is enacted to read: 
PART 8 
MEDIATION 
CHAPTER 801 
UNIFORM MEDIATION ACT 
§10001. Title 
This chapter may be cited as "the Uniform Mediation Act." 
§10002. Definitions 
In this chapter, the following terms have the following 
meanings. 
1. 
Mediation. 
"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. 
Mediation 
ccmnunication. 
"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. 
Mediation party. 
"Mediation party" means a person that 
participates in a mediation and whose agreement is necessary to 
resolve the dispute. 
4. 
Mediator. 
"Mediator" means an individual who conducts a 
mediation. 
5. 
Nonparty participant. 
"Nonparty participant" means 
a 
person, other than a party or mediator, that participates in a 
mediation. 
6. 
Person. 
"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. 
Proceeding. 
"Proceeding" means: 
A. 
A 
judicial, 
administrative, 
arbitral 
or 
other 
adjudicati ve 
process, 
including 
related 
prehearing 
and 
posthearing motions, conferences and discovery: or 
B. 
A legislative hearing or similar process. 
8. 
Record. 
"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. 
Sign. 
"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. 
REPORTER· S lfO'.rES 
1. Section 2(1). ··Mediation." 
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 "conducted," but the Drafting Committees 
preferred the word "assistance" to emphasize that, in contrast to 
an arbitration, a mediator has no authority to issue a decision. 
The use of the word "facilitation" is not intended to express a 
preference with regard to approaches of mediation. The Drafters 
recognize approaches to mediation will vary widely. 
2. Section 2 (2). ··Mediation Conmunication." 
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 "statement" as "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 -
in other words, the physical presence of a person -
is not a communication. By contrast, nonverbal conduct such as 
nodding in response to a question would be 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 "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., 
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 (5th 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 (7th 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 t,hat 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 (9th 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 (7th Cir., 1980). 
The 
provision 
makes 
clear 
that 
conversations 
to 
initiate 
mediation and other non-session communications that are related 
to a mediation are considered "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 
"made 
for 
the 
purposes 
of 
considering, 
initiating, continuing, or reconvening a mediation or retaining a 
mediator." 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 
cons ti tute 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 
"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. 
(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 "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 "mediation communication" because it was 
not 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 "mediation 
communication." Documents prepared for the mediation by expert 
wi tnesses attending the mediation would also be covered by this 
definition. See Section 4(b)(3). 
3. Section 2(3). "Mediator." 
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 "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, Facilitatiye vs. Evaluative Mediator Orientations: 
Piercing the "Grid" Lock, 24 Fla. St. U. L. Rev. 985 (1997) 
4. Section 2(4). "Nonparty Participant. ,. 
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 
prov~s~ons 
requ~r~ng 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).). 
5. Section 2(5). "Mediation Party." 
The Act defines "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 
"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 
-
including their attorneys and other representatives -
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. 
6. Section 2(6). "Person." 
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. 
7. Section 2 (7). otProceedinq."" 
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. 
8. Section 2(8). "Record"" and Section 2(9). ""Sign." 
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). 
§10003. Scqpe 
1. 
Application. 
Exce~t as otherwise ~rovided in subsection 
or 3, this cha~ter ap~lies to a mediation in which: 
A. 
The mediation ~arties are required to mediate by statute 
or court or administrative agency rule or to be referred to 
mediation by a court, administrative agency or arbitrator; 
B. 
The mediation ~arties and the mediator agree to mediate 
in a record that demonstrates an ex~ectation that mediation 
communications will be ~rivileged against disclosure; or 
C. 
The mediation ~arties use as a mediator an individual 
who is held out as a mediator or the mediation is ~royided 
by a ~erson that holds itself out as providing mediation. 
2. 
Exemptions. 
The cha~ter does not apply to a mediation: 
A. 
Relating 
to 
the 
establishment, 
negotiation, 
administration or termination of 
a 
collective bargaining 
relationship; 
B. 
Relating to a dispute that is pending under or is part 
of the processes established by a 
collective bargaining 
agreement. except that the chapter applies to a mediation 
arising out of 
a 
dispute that has 
been filed with 
an 
administrative agency or court; 
C. 
Conducted by a 
judge who might make a ruling on the 
case: or 
D. 
Conducted under the auspices of: 
(1) 
A primary or secondary school if all the parties 
are students: or 
(2) 
A correctional institution for youths if all the 
parties are residents of that institution. 
3. 
By agreement. 
If the parties agree in advance in a 
signed record, or a record of proceeding reflects agreement by 
the ~arties, that all or part of a mediation is not privileged, 
the privileges under sections 10004 to 10006 do not apply to the 
mediation or part agreed upon. However, sections 10004 to 10006 
apply to a mediation communication made by a person that has not 
received actual notice of the agreement before the communication 
is made. 
REPORTER' S lfOTES 
1. In general. 
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 "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. 
2. Section 3 (a). Mediations covered by Act; triggering mechanisms. 
Section 3(a) sets forth three conditions, the satisfaction of any 
one of which will trigger the application of the Act. 
This 
triggering requirement is necessary because the many different 
forms, contexts, and practices of mediation and other methods of 
dispute resolution make it sometimes difficult to 
know with 
certainty whether one is engaged in a mediation or some other 
dispute resolution or prevention process that employs mediation 
and related principles. See, e.g., Ellen J. 
Waxman & Howard 
Gadlin, Ombudsmen: A Buffer Between Institutions, Individuals, 4 
Disp. 
Resol. 
Mag. 
(Summer 
1998) 
(describing functions 
of 
ombuds, 
which 
can at 
times 
include 
mediation 
concepts 
and 
skills); Janice Fleischer & Zena Zumeta, Group Facilitation: A 
Way to Address Problems Collaboratively, 4 Disp. Resol. Mag.. 4 
(Summer 1998) (comparing post-dispute mediation with pre-dispute 
facilitation); 
Lindsay "Peter" White, 
Partnering: Agreeing to 
Work Together on Problems, 4 Disp. Resol. Mag. 18 (Summer 1998) 
(describing a common collaborative problem solving technique used 
in the construction industry). This problem is exacerbated by the 
fact that unlike other professionals -
such as doctors, lawyers, 
and social workers -
mediators are not licensed and the process. 
they conduct is informal. If the intent to mediate is not clear, 
even a casual 
~iscussion over a backyard fence might later be 
deemed 
to 
have 
been 
a 
mediation, 
unfairly 
surpr~s~ng those 
involved 
and frustrating the 
reasonable expectations of 
the 
parties. The first triggering mechanism, Section 3(a)(1), subject 
to exceptions provided in 3(b), covers those situations in which 
mediation parties are either required to mediate or referred to 
mediation by 
governmental 
institutions or 
by 
an arbitrator. 
Administrative agencies include those public agencies with the 
authority to prescribe rules and regulations to administer a 
statute, as well as the authority to adjudicate matters arising 
under 
such 
a 
statute. 
They include agricultural departments, 
child protective services, civil rights commissions and worker I s 
compensation boards, to name only a few. Through this triggering 
mechanism, the formal court-referred mediation that many people 
associate with mediation is clearly covered by 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., 
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 "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 "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, 
"holding out" has included making a representation in a public 
manner of being in the business or having another person make 
that representation. See l8A 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 Ac.t' s coverage by not using this triggering 
mechanism. This leaves a great deal of leeway, appropriately, 
with those involved in the practices. 
3. Section 3(b)(1) and (2). Exc1usion of co11ective barqaininq 
disputes. 
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 
(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 
ar~s~ng 
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 wi thin the protections and 
responsibilities of the Act. 
4. Section 3(b)(3). Exclusion of certain judicial conferences. 
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. 
On 
the 
other 
hand, 
there 
are 
judicially-hosted 
settlement 
conferences 
that 
for 
all 
practical 
purposes 
are 
mediation 
sessions for which the Act's policies of promoting full and frank 
discussions between the parties would be furthered. See generally 
Wayne D. Brazil, Hosting Settlement Conferences: Effectiveness in 
the Judicial Role, 3 Ohio St. J. on Disp. Resol. 1 (1987); Carrie 
Menkel-Meadow, For and Against Settlement: Uses and Abuses of the 
Mandatory Settlement Conference, 33 UCLA L. Rev. 485 (1985). 
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 "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 "buddy judges," and retired judges who return to 
mediate cases do not fall wi thin 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. 
5. Section 3(b)(4)(A). Exclusion of peer mediation. 
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 
liMA Drafting Committees). The law has "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 El?person v. Arkansas, 393 U. S. 97, 
(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 
6. Section 3(b)(4)(B). Exclusion of correctional institutions for 
youth. 
The Act also exempts programs involving youths at correctional 
insti tutions 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. 
7. Section 3(c). A1ternative of non-privi1eged mediation. 
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 
"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. 
8. other scope issues. 
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). 
§l0004. Privilege against disclosure; admissibility; discovery 
1. 
Privileged unless 
waived 
or 
precluded. 
Except 
as 
otherwise provided in section 10006, a mediation communication is 
privileged as provided in subsection 2 and is not subject to 
discovery or admissible in evidence in a proceeding unless waived 
or precluded as provided by section 10005. 
2. 
Privileges. 
In a proceeding, the following privileges 
apply. 
A. 
A mediation party may 
refuse to disclose, 
and may 
prevent 
any 
other 
person 
from 
disclosing, 
a 
mediation 
communication. 
B. 
A 
mediator 
may 
refuse 
to 
disclose 
a 
mediation 
communication 
and 
may 
prevent 
any 
other 
person 
from 
disclosing a mediation communication of the mediator. 
C. 
A nonparty participant may refuse to disclose, and may 
prevent 
any 
other 
person 
from 
disclosing, 
a 
mediation 
communication of the nonparty participant. 
3. 
Admissibility: 
discove~. 
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. 
REPORTER· S RO'J:'ES 
1. In general. 
Sections 
through 
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 "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). 
2. The mediation privilege structure. 
a. Rationale for privilege. 
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 -
Privileged Communications, 
Harv. L. 
Rev. 1450 (1985). The Drafters considered several 
other 
approaches 
to mediation confidentiality 
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 
01am v. Congress Mortgage Co., 
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 
prov~s~ons 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 a1., 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): 
Ill. Compo 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 
, 32 
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. 
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, 
Ohio St. J. on Disp. Resol. 
(1986); Scott H. 
Hughes, A Closer Look: The Case for a Mediation Privilege Has Not 
Been Made, 5 Disp. Resol. Mag. 14 (Winter 1998). 
b. Communications to which the privileqe attaches 
The 
privilege 
applies 
to 
a 
broad 
array 
of 
"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. 
c. Proceedinqs at which the privileqe may be asserted. 
The privilege under Section 4 applies in most legal "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)(l), and the Reporter's Notes to that Section should 
be consulted for further clarification. 
3. Section 4(a). Description of effect of privileqe. 
The words "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. 
4. Section 4(b). Operation of privileqe. 
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 
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 provJ.sJ.on 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. The holders of the privilege. 
1. In general. 
A critical component of the Act's general rule is its designation 
of the holder -
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. 
Compo 
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 lOA (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. 
a2. Parties as holders. 
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, 
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, 
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. 
a3. Mediator as holders. 
Mediators are made holders with respect to their own 
communications, so that they may participate candidly, 
respect to their own testimony, so that they will not 
mediation 
and with 
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. 
a4. Nonparty participants as holders. 
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. 
Contractual 
notice 
of 
intent 
to 
invoke 
the 
mediation 
privilege. 
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). 
5. Section 4(c). Otherwise discoverable evidence. 
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 admission at trial merely 
because it is communicated in a mediation. For purposes of the 
mediation privilege, it is the communication that is made in a 
mediation that is protected by the privilege, not the underlying 
evidence giving rise to the communication. 
Evidence that is 
communicated in a mediation is subject to discovery, just as it 
would be if the mediation had not taken place. 
There is no 
"fruit of the poisonous 
tree" 
doctrine in the 
mediation privilege. For example, 
a party who learns about a 
witness during a mediation is not precluded by the privilege from 
subpoenaing that witness. This is a common exemption in mediation 
privilege statutes, and is also found in Uniform Rule of Evidence 
408. See, e.g., Fla. Stat. Ann. Section 44.102 (1999) (general); 
Minn. Stat. Ann. Section 595.02 (1996) (general); Ohio Rev. Code 
Ann. 
Section 2317.023 
(West 1996) 
(general); 
Wash. 
Rev. 
Code 
Section 5.60.070 (1993) (general). 
§10005. 
Waiver and preclusion of privilege 
1. 
Waiver. 
A privilege under section 10004 may be waived 
in a record or orally during a proceeding if it is expressly 
waived by all parties to the mediation and: 
A. 
In the case of the privilege of a 
mediator. it is 
expressly waived by the mediator; and 
B. 
In the case of the privilege of a nonparty participant. 
it is expressly waived by the nonparty participant. 
2. 
Prejudice; precluded. 
A person that discloses or makes 
a representation about a mediation communication that prejudices 
another person in a proceeding is precluded from asserting a 
privilege under section 10004. but only to the extent necessary 
for the person prejudiced to respond to the representation or 
disclosure. 
3. 
Crime or criminal activity; precluded. 
A person that 
intentionally uses a mediation to plan. attempt to commit or 
commit a crime or to conceal an ongoing crime or ongoing criminal 
activity is precluded from asserting a privilege under section 
10004. 
REPORTER' S NOTES 
1. Section 5(a) and (b). Waiver and precl~sion. 
Section 5 provides for waiver of privilege, and for a party, 
mediator, or nonparty participant to be precluded from asserting 
the privilege in situations in which mediation communications 
have been disclosed before the privilege has 
been asserted. 
Waiver must be express and either recorded through a writing or 
electronic 
record or 
made 
orally during 
specified types 
of 
proceedings. These rules further the principle of party autonomy 
in that mediation participants may generally prefer not to waive 
their 
mediation 
privilege 
rights. 
However, 
there 
may 
be 
situations in which one or more parties may wish to be freed from 
the burden of privilege, and the waiver provision permits that 
possibility. 
See, 
e.g., 
Clam 
v. 
Congress 
Mortgage 
Co., 
F.Supp.2d 1110, 1131-33 (N.D. Cal. 1999). 
Significantly, these provisions differ from the attorney-client 
privilege in that the mediation privilege does not permit waiver 
to be implied by conduct. See Michael H. 
Graham, Handbook of 
Federal Evidence Section 511.1 (4th ed. 1996). The rationale for 
requiring explicit waiver is to safeguard against the possibility 
of 
inadvertent waiver, 
such 
as 
through 
the 
often salutary 
practice of parties discussing their dispute and mediation with 
friends and relatives. In contrast to these settings, there is a 
sense of formality and awareness of legal rights in all of the 
proceedings to which the privilege may be waived if the waiver is 
oral. They generally are conducted on the record, easing the 
difficulties of establishing what was said. 
Read together with Section 4, the waiver operates as follows: 
For testimony about mediation communications made by a party, all 
parties are the holders and therefore all parties must waive the 
privilege before a party or nonparty participant may testify or 
provide evidence; if that testimony is to be provided by a 
mediator, all parties and the mediator must waive the privilege. 
For testimony about mediation communications that are made by the 
mediator, both the parties and the mediator are holders of the 
privilege, and therefore both the parties and the mediator must 
waive 
the 
privilege before 
a 
party, 
mediator, 
or 
nonparty 
participant may testify or provide evidence of 
a 
mediator'S 
mediation communications. 
For testimony about mediation communications that are made by a 
nonparty 
participant, 
both 
the 
parties 
and 
the 
nonparty 
participants are holders of the privilege and therefore both the 
parties and the nonparty participant must waive before a party or 
nonparty participant may testify; if that testimony is to be 
offered through the mediator, the mediator must also waive. 
Earlier drafts 
included provisions that permitted waiver 
by 
conduct, 
which 
is 
common 
among 
communications 
privileges. 
However, the Drafting Committees deleted those provisions because 
of 
concerns 
that mediators 
and parties unfamiliar with the 
statutory 
environment 
might 
waive 
their 
privilege 
rights 
inadvertently. That created the anomalous situation of permitting 
the opportunity for one party to blurt out potentially damaging 
information in the midst of a trial and then use the privilege to 
block the other party from contesting the truth. 
To address this anomaly, 
the Drafters added Section 5(b}, 
a 
preclusion provision to cover situations in which the parties do 
not 
expressly 
waive 
the 
privilege 
but 
engage 
in 
conduct 
inconsistent with the assertions of the privilege, and that cause 
prejudice. 
As 
under 
existing 
interpretations 
for 
other 
communications privileges, waiver through preclusion would not 
typically constitute a 
waiver with respect to all mediation 
communications, 
only 
those 
related 
in 
subject 
matter. 
See 
generally Unif. R. Evid. R. 510 and 511 (1986). 
Critically, 
the 
preclusion 
provision 
applies 
only 
if 
the 
disclosure prejudices another in a proceeding. It is not intended. 
to encompass the casual recounting of the mediation session to a 
neighbor that i,s not admissible in court, but would include 
disclosure that would, absent the exception, allow one party to 
take unfair advantage of the privilege. For example, if one 
party's attorney states in court that the other party admitted 
destroying evidence during mediation, that party should not be 
able to block the use of testimony to refute that statement later 
in that proceeding. Such advantage-taking or opportunism would be 
inconsistent with the policy rationales that support continued 
recognition of the privilege, while the casual conversation would 
not. Thus, if Andy and Betty were the parties in a mediation, and 
Andy affirmatively stated in court that Betty admitted destroying 
evidence during the mediation, Andy is precluded from asserting 
that A did not waive the privilege. If Betty decides to waive as 
well, evidence of Andy's and Betty's statements during mediation 
may be admitted. 
Analogous 
doctrines 
have 
developed 
regarding 
constitutional 
privileges, Harris v. New York, 401 U.S. 222, 224 (1971) (shield 
provided by Miranda cannot be perverted into a license to use 
perjury by way of a defense, free from the risk of confrontation 
with prior inconsistent utterances), and the rule of completeness 
in Rule 106 of the Uniform Rules of Evidence, which states that 
if one party introduces part of a record, an adverse party may 
introduce other parts when to do otherwise would be unfair. 
Finally, it is worth noting that in arbitration, 
which is 
sometimes 
conducted without 
an 
ongoing 
record, 
it will 
be 
important for waiving parties to ask the arbitrator to note the 
waiver. Any individual who wants notice that another has received 
a 
subpoena 
for 
mediation 
communications 
or 
has 
waived 
the 
privilege 
can provide 
for notification as 
a 
clause in the 
agreement to mediate or the mediated agreement. 
2. Section 5(c). Preclusion for use of mediation to plan or 
commit crime. 
This preclusion reflects a 
common practice in the States of 
exempting 
from 
confidentiality 
protection 
those 
mediation 
communications that relate to the ongoing or future commission of 
a crime, as discussed in the Reporter's Notes to Section 6(a)(4). 
However, 
it narrows 
the 
preclusion, 
thus 
retaining 
broader 
confidentiality, and removes the privilege protection only when 
an actor uses or attempts to use the mediation itself to further 
the 
commission 
of 
a 
crime, 
rather 
than 
lifting 
the 
confidentiality protection more broadly to any discussion of 
crimes. For example, it would preclude gang members from claiming 
that a meeting to plan a drug deal was really a mediation that 
would privilege those communications in a later criminal or civil 
case. 
This Section should be read together with Section 6(a)(4), which 
applies to particular communications within a mediation which are 
used for the same purposes. The two differ on the purpose of the 
mediation: Section 5(c) applies when the mediation itself is used 
to further a crime, while Section 6(a)(4) applies to matters that 
are 
being 
mediated 
for 
other 
purposes 
but 
which 
include 
discussion of acts or statements that may be deemed criminal in 
nature. 
Under 
Section 
5(c), 
the 
preclusion 
applies 
to 
all 
mediation communications because the purpose of the mediation 
frustrates public policy. Under Section 6 (a) (4), the preclusion 
only applies 
to 
those mediation 
communications 
that have 
a 
criminal character; the privilege may still be asserted to block 
the 
introduction 
of 
other 
communications 
made 
during 
the 
mediation. This rationale is discussed more fully in the Comments 
to Section 6(a)(4). 
§I0006. Exceptions to privilege 
1. 
Exceptions. 
There is no privilege under section 10004 
for a mediation communication that is: 
A. 
In an agreement evidenced by a record signed by all 
parties to the agreement; 
B. 
Available to the public under Title 1, 
chapter 13, 
subchapter 1 or made during a session of a mediation that is 
open, or is reguired by law to be open, to the public; 
C. 
A threat or statement of a plan to inflict bodily injury 
or commit a crime of violence; 
D. 
Intentionally used to plan a crime, attempt to commit or 
commit a crime or to conceal an ongoing crime or ongoing 
criminal activity: 
E. 
Sought or offered to prove or disprove 
a 
claim or 
complaint of professional misconduct or malpractice filed 
against a mediator; 
F. 
Except as otherwise provided in subsection 3, sought or 
offered to prove 
or 
disprove 
a 
claim or 
complaint of 
professional 
misconduct 
or 
malpractice 
filed 
against 
a 
mediation party, nonparty participant or representative of a 
party based on conduct occurring during a mediation: or 
G. 
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, unless the 
case is referred by a court to mediation and a public agency 
participates. 
2. 
Evidence not otherwise available. 
There is no privilege 
under 
section 
10004 
if 
a 
court, 
administrative 
agency 
or 
arbitrator 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 that the mediation communication 
is sought or offered in: 
A. 
A court proceeding involving a murder or a Class A, B or 
C crime; or 
B. 
Except 
as 
otherwise 
provided 
in 
subsection 
3, 
a 
proceeding to prove 
a 
claim to rescind or reform or 
a 
defense to avoid liability on a contract arising out of the 
mediation. 
3. 
Mediator mal" not be compelled: certain situations. 
A 
mediator may not be compelled to provide evidence of a mediation 
communication 
referred 
to 
in 
subsection 
1, 
paragraph 
F 
or 
subsection 2, paragraph B. 
4. 
Limitations. 
If 
a 
mediation 
communication 
is 
not 
privileged under subsection 1 or 2, 
only the portion of the 
mediation communication necessary for the application of the 
exception 
from 
nondisclosure 
may 
be 
admitted. 
Admission 
of 
evidence under subsection 1 or 2 does not render the evidence, or 
any other mediation communication, discoverable or admissible for 
any other purpose. 
REPORTER' S NOTES 
1. In qeneral. 
This Section articulates specific and exclusive exceptions to the 
broad grant of privilege provided to mediation communications in 
Section 4. As with other privileges, when it is necessary to 
consider evidence in order to determine if an exception applies, 
the 
Act 
contemplates that 
a 
court will hold an in camera 
proceeding at which the claim for exemption from the privilege 
can be confidentially asserted and defended. See, e.g., Rinaker 
v. Superior Court, 74 Cal. Rptr.2d 464, 466 (Ct. App. 1998); Olam 
v. Congress Mortgage Co., 68 F.Supp.2d 1110, 1131-33 (N.D. Cal. 
1999) (discussing whether an in camera hearing is necessary). 
The' exceptions in Section 6(a) apply regardless of the need for 
the 
evidence 
because 
society's 
interest in 
the 
information 
contained 
in 
the 
mediation 
communications 
may 
be 
said 
to 
categorically outweigh its interest in the confidentiality of 
mediation 
communications. 
In 
contrast, 
the 
exceptions 
under 
Section 6(b) would apply only in situations where the relative 
strengths of society's interest in a mediation communication and 
mediation participant interest in confidentiality can only be 
measured under the facts and circumstances of the particular 
case. In these situations, the Act establishes what is in effect 
a 
presumption 
of 
privilege, 
which 
may 
be 
rebutted 
in 
an 
off-the-record hearing in which the proponent of the evidence 
must meet a high standard of need by demonstrating that the 
evidence is otherwise unavailable and that the need for it in the 
case at bar substantially outweighs the state's interest in 
protecting the confidentiality of mediation. In other words, the 
exceptions listed in 6(b) include situations that should remain 
confidential but for overriding concerns for justice. 
2. Section 6(a)(1). Record of an aqreement. 
This exception would permit evidence of a signed agreement, such 
as 
an agreement to mediate, 
an agreement regarding how 
the 
mediation should be conducted --
including whether the parties 
and mediator 
may 
disclose outside of proceedings, 
or, 
more 
commonly, 
written 
agreements 
memorializing 
the 
parties' 
resolution 
of 
the 
dispute. 
The 
exception 
permits 
such 
an 
agreement to be introduced in a 
subsequent court proceeding 
convened to determine 
whether 
the 
terms 
of that settlement 
agreement had been breached. 
The words "agreement evidenced by a record" and "signed" refer to 
written and executed agreements, those recorded by tape recorded 
and ascribed to by the parties on the tape, and other electronic 
means to record and sign, as defined in Sections 2(9) and 2(10). 
In other words, 
a participant's notes about an oral agreement 
would not be a signed agreement. On the other hand, the following 
situations would be considered a signed agreement: a handwritten 
agreement that the parties have 
signed, 
an e-mail 
exchange 
between the parties in which they agree to particular provisions, 
and a tape recording in which they state what constitutes their 
agreement. 
Written 
agreements 
are 
commonly 
excepted 
from 
mediation 
confidentiality 
protections, 
permitting 
the 
Act 
to 
embrace 
current practices in a majority of States. See Ariz. Rev. Stat. 
Ann. 
Section 12-2238 (1993): 
Cal. Evid. 
Code Section 1120(1) 
(West 1997) (general): Cal. Evid. Code Section 1123 (West 1997) 
(general): Cal. Gov't. Code Section 12980{i) (West 1998) (housing 
discrimination): 
Colo. 
Rev. 
Stat. 
Section 24-34-506.5 
(1993) 
(housing 
discrimination); 
Ga. 
Code 
Ann. 
Section 
45-19-36{e) 
(1989) 
(fair 
employment): 
Ill. 
Compo 
Stat. 
Section 
5I7B-102{E)(3) 
(1989) 
(human rights); Ind. 
Code Section 679.2 
(1998) (general); Iowa. Code Ann. Section 216.15{B) (1999) (civil 
rights); Ky. 
Rev. Stat. Ann. 
Section 344.200(4) 
(1996) 
(civil 
rights); 
La. 
Rev. 
Stat. 
Ann. 
Section 
9:4112{B){1)(c) 
(1997) 
(general); La. Rev. Stat. Ann. Section 51:2257{D) (1998) (human 
rights); 5 Me. Rev. Stat. Ann. Section 4612(1){A) (1995) (human 
rights); Md. Code 1957 Ann. Art. 49{B) Section 28 (1991) (human 
rights); 
Mass. 
Gen. 
Laws. 
ch. 
151B, 
Section 
(1991) 
(job 
discrimination); Mo. 
Rev. Stat. Section 213.077 
(1992) 
(human 
rights); Neb. Rev. Stat. Section 43-2908 (1993) (parenting act): 
N.J. Stat. Ann. Section 10:5-14 (1992) (civil rights); Or. Rev. 
Stat. Ann. Section 36.220(2)(a) (1997) (general): Or. Rev. Stat. 
Ann. 
36.262 
(1989) 
(agricultural foreclosure); 
Pa. 
Consolo 
Stat. 
Section 
5949{b){1) 
(1996) 
(general); 
Tenn. 
Code 
Ann. 
Section 4-21-303(d) (1996) (human rights); Tex. Gov't. Code Ann. 
Section 2008.057 (1999) 
(Administrative Procedure Act): Vt. R. 
Civ. P., Rule 16.3 (1998) (general civil); Va. Code Ann. Section 
8.01-576.10 (1994) (general); Va. Code Ann. Section 8.01-581.22 ( 
1988) (general); Wash. Rev. Code Section 5.60.070 (l)(e) and (f) 
(1993) 
( 1993) (general): Wash. Rev. Code Section 26.09.015(3) 
(1991) (divorce): Wash. Rev. Code Section 49.60.240 (1995) (human 
rights); W.Va. Code Section 5-11A-11{b){4) (1992) (fair housing): 
W.Va. 
Code Section 6B-2-4(r) 
(1990) 
(public employees): 
Wis. 
Stat. 
Section 
767.11(12) 
(1993) 
(family 
court); 
Wis. 
Stat. 
Section 904.085(4){a) (1997) (general). 
This exception is noteworthy only for what is not included: oral 
agreements. The disadvantage of exempting oral settlements is 
that nearly everything said during a mediation session could bear 
on either whether the parties came to an agreement or the content 
of 
the 
agreement. 
In 
other 
words, 
an 
exception 
for 
oral 
agreements has the potential to swallow the rule of privilege. As 
a 
result, 
mediation participants might 
be 
less 
candid, 
not 
knowing whether a controversy later would erupt over an oral 
agreement. Unfortunately, excluding evidence of oral settlements 
reached 
during 
a 
mediation 
session 
would 
operate 
to 
the 
disadvantage 
of 
a 
less 
legally sophisticated party 
who 
is 
accustomed to the enforcement of oral settlements reached in 
negotiations. 
Such a 
person might also mistakenly assume the 
admissibility 
of 
evidence 
of 
oral 
settlements 
reached 
in 
mediation as well. However, because the majority of courts and 
statutes limit the confidentiality exception to signed written 
agreements, one would expect that mediators and others will soon 
incorporate 
knowledge 
of 
a 
writing 
requirement 
into 
their 
practices. 
See Vernon v. 
Acton, 
N.E.2d 805 (Ind., 
2000) 
(ci ting draft Uniform Mediation Act); Ryan v. Garcia, 
Cal. 
App.4th 1006, 1012 (1994) (privilege statute precluded evidence 
of oral agreement); Hudson v. Hudson, 600 So.2d 7,9 (Fla. App. 
1992) (privilege statute precluded evidence of oral settlement); 
Ohio Rev. Code Ann. Section 2317.023 (West 1996). For an example 
of a state statute permitting the enforcement of oral agreements 
under certain narrow circumstances, see Cal. Evid. Code Section 
1118, 1124 (West 1997) 
(providing that oral agreement must be 
memorialized in writing within 72 hours). 
Despite the limitation on oral agreements, the Act leaves parties 
other means 
to preserve the agreement quickly. 
For example, 
parties can agree that the mediation has ended, state their oral 
agreement into the tape recorder and record their assent. See 
Regents of the University of California v. Sumner, 42 Cal. App. 
4th 1209, 1212 (1996). This approach was codified in Cal. Evid. 
Code Section 1118, 1124 (West 1997). 
The 
parties 
may 
still 
provide 
that 
particular 
settlements 
agreements are confidential with regard to disclosure to the 
general public, 
and provide for sanctions for the party who 
discloses voluntarily. See Stephen A. Hochman, Confidentiality in 
Mediation: 
A Trap for 
the Unwary, 
SB4l 
ALI-ABA 
(1995). 
However, confidentiality agreements reached in mediation, like 
those in other settlement situations, are subject to the need for 
evidence 
and public policy considerations. 
See Cole et al., 
supra, Section 9.23, 9.25. 
3. Section 6(a)(2). Mediations open to the public; meetings and 
records made open by law. 
Section 6(a)(2) makes clear that the privileges in Section 4 do 
not preempt state open meetings and open records laws, 
thus 
deferring to the policies of the individual States regarding the 
types 
of meetings 
that will be 
subject to 
these 
laws. 
In 
addition, it provides an exception when the mediation is opened 
to the public, such as a televised mediation. 
This exception recognizes that there should be no after-the-fact 
confidentiality for communications that were made in a meeting 
that was either voluntarily open to the public 
such as 
a 
workgroup meeting in a federal negotiated rule making that was 
made open to the general public, even though not required by 
Federal Advisory Committee Act 
(FACA) 
to be 
open 
or was 
required to be open to the public pursuant to an open meeting 
law. For example, the Act would provide no privilege if an agency 
holds a closed meeting but FACA would require that it be open. 
This exception also applies if a meeting was properly closed but 
an open record law requires that the meeting summaries or other 
documents -
perhaps even a transcript -
be made available under 
certain circumstances, e.g. the Federal Sunshine Act (5 U.S.C. 
552b 
(1995). 
In this situation, 
only the 
records 
would 
be 
excepted from the privilege, however. 
4. Section 6(a)(3). 7breats of bodily injury or to commit a crime 
of violence. 
The policy rationales supporting the privilege do not support 
mediation communications that threaten bodily injury or crimes of 
violence. To the contrary, in cases in which a credible threat 
has been made disclosure would serve the public interest in 
safety and the protection of others. Because such statements are 
sometimes made in anger with no intention to commit the act, the 
exception is a narrow one that applies only to the threatening 
statements; the remainder of the mediation communication remains 
protected against disclosure. 
State mediation confidentiality statutes frequently recognize a 
similar exception. See Alaska Stat. Section 47.l2.450(e) (1998) 
(community dispute 
resolution centers) 
(admissible 
to extent 
relevant 
to 
a 
criminal 
matter); 
Colo. 
Rev. 
Stat. 
Section 
13-22-307 
(1998) 
(general) 
(bodily injury); 
Kan. 
Stat. 
Ann. 
Section 23-605(b) (5) 
(1999) 
(domestic relations) 
(mediator may 
report threats of violence to court); Or. 
Rev. Stat. Section 
36.220(6) (1997) (general) (substantial bodily injury to specific 
person); 
Pa. 
Cons. 
St. 
Ann. 
Section 
5949 (2) (I) 
(1996) 
(general) (threats of bodily injury); Wash. 
Rev. 
Code Section 
7.75.050 (1984) 
(community dispute resolution centers) (threats 
of bodily injury); Wyo. Stat. Section 1-43-103 (c)(ii) 
(1991) 
(general) (future crime or harmful act). 
5. Section 6(a)(4). Communications used to plan or commit a crime. 
The policies underlying this provision mirror those underlying 
Section 5(c), and are discussed there. This exception applies to 
particular communications used to plan or commit a crime, whereas 
Section 5(c) 
applies 
when 
the mediation is 
used 
for 
these 
purposes. It includes communication intentionally used to conceal 
an ongoing crime or criminal activity. 
Almost a dozen States currently have mediation confidentiality 
protections that contain exceptions related to a commission of a 
crime. Colo. Rev Stat. Section 13-22-307 (1991) (general) (future 
felony); 
Fla. Stat. 
Ann. 
Section 723.038 
(mobile 
home parks) 
(ongoing or future crime or fraud); 
Iowa Code Section 216.15B 
(1999) 
(civil 
rights); 
Iowa 
Code 
Section 
654A.13 
(1990) 
(farmer-lender); 
Iowa 
Code 
Section 
679C.2 
(1998) 
(general) 
(ongoing or future crimes); Kan. Stat. Ann. Section 23-605(b)(3) 
(1989) 
(ongoing and future crime or fraud); 
Kan. 
Stat. 
Ann. 
Section 44-817(c)(3) (1996) (labor) (ongoing and future crime or 
fraud); 
Kan. 
Stat. 
Ann. 
Section 75-4332(d)(3) 
(1996) 
(public 
employment) 
(ongoing and future crime or fraud); 
Me. 
Rev. 
Stat. Ann. Section 2857(2) (1999) (health care) (to prove fraud 
during 
mediation); 
Minn. 
Stat. 
Section 
595.02(1)(a) 
(1996) 
(general); 
Neb. 
Rev. 
Stat. 
Section 
25-2914 
(1994) 
(general) 
(crime or fraud); 
N.H. 
Rev. 
Stat. 
Ann. 
Section 328-C:9(III) 
(1998) 
(domestic relations) 
(perjury in mediation); N.J. Stat 
Ann. 
Section 34:13A-16(h) 
(1997) 
(workers' 
compensation) 
(any 
crime); N.Y. 
Lab. 
Laws Section 702-a(5) 
(McKinney 1991) 
(past 
crimes) (labor mediation); Or. Rev. Stat. Ann. Section 36.220 (6) 
(1997) (general) (future bodily harm to a specific person); S.D. 
Codified Laws Section 19-13-32 (1998) (general) (crime or fraud); 
Wyo. Stat. Ann. Section 1-43-103(c)(ii) (1991) (future crime). 
While ready to exempt attempts to commit or the commission of 
crimes from confidentiality protection, the Drafting Committees 
declined to cover "fraud" that would not also constitute a crime 
because civil cases frequently include allegations of fraud, with 
varying degrees of merit, and the mediation would appropriately 
focus 
on discussion of fraud claims. 
Some state statutes do 
exempt fraud, although less frequently than they do crime. See, 
e.g., Fla. Stat. 
Ann. 
Section 723.038(8) 
(1994) 
(mobile home 
parks) (communications made in furtherance of commission of crime 
or fraud); Kan. Stat. Ann. Section 23-605(b)(3) (1999) (domestic 
relations) 
(ongoing crime or fraud); 
Kan. 
Stat. 
Ann. 
Section 
44-817(c)(3) (1996) (labor) (ongoing crime or fraud); Kan. Stat. 
Ann. 
Section 60-452(b)(3) 
(1964) 
(general) 
(ongoing or future 
crime or fraud); 
Kan. Stat. Ann. 
Section 75-4332(d)(3) 
(1996) 
(public employment) (ongoing or future crime or fraud); Neb. Rev. 
Stat. Section 25-2914 
(1994) 
(general) 
(crime or fraud): 
S.D. 
Codified Laws Section 19-13-32 (1998) (general) (crime or fraud). 
Significantly, 
this 
exception 
does 
not 
cover 
mediation 
communications constituting admissions of past crimes, or past 
potential crimes, 
which remain privileged. Thus, 
for example, 
discussions of past aggressive positions with regard to taxation 
or 
other 
matters 
of 
regulatory 
compliance 
in 
commercial 
mediations remain privileged against possible use in subsequent 
or 
simultaneous 
civil 
proceedings. 
The 
Drafting 
Committees 
discussed the possibility of 
creating 
an 
exception 
for 
the 
related circumstance in which a party makes an admission of past 
conduct that portends future bad conduct. However, they decided 
against such an expansion of this exception because such past 
conduct can already be disclosed in other important ways. The 
other parties can warn others, because parties are not prohibited 
from disclosing by the Act. 
The Act permits the mediator to 
disclose if required by law to disclose felonies or if public 
policy requires. 
It is important to emphasize that the Act's limited focus as an 
evidentiary and discovery privilege, rather than a broader rule 
of confidentiality means that this privilege provision would not 
prevent a party from calling the police, or warning someone in 
danger. 
Finally, it should be noted that this exception is intended to 
prevent the abuse of the privilege as a shield to evidence that 
might be necessary to prosecute or defend a crime. The Drafters 
recognize that it is possible that the exception itself could be 
abused. Such unethical or bad faith conduct would continue to be 
subject to traditional sanction standards. 
6. 
Section 6(a)(5). 
Evidence 
of professional 
misconduct 
or 
malpractice by the mediator. 
The rationale behind the exception is that disclosures may be 
necessary to promote accountability of mediators by allowing for 
grievances to be brought against mediators, and as a matter of 
fundamental fair'ness, to permit the mediator to defend against 
such 
a 
claim. 
Moreover, 
permitting 
complaints 
against 
the 
mediator furthers the central rationale that States have used to 
reject the traditional basis of licensure and credentialing for 
assuring quality in professional practice: that private actions 
will 
serve 
an 
adequate 
regulatory 
function 
and 
sift 
out 
incompetent or unethical providers through liability and the 
rejection of service. See, e.g., W. Lee Dobbins, The Debate Qver 
Mediator Qualifications: Can They Satisfy the Growing Need to 
Measure Competence Without Barring Entry into the Market?, 
U. 
Fla. J. L. & Pub. Pol'y 95, 96-98 (1995). 
7. 
Section 6(a)(6). 
Evidence 
of professional 
misconduct 
or 
malpractice by a party or representative of a party. 
Sometimes the issue arises whether anyone may provide evidence of 
professional 
misconduct 
or 
malpractice 
occurring 
during 
the 
mediation. See In re Waller, 573 A.2d 780 (D.C. App. 1990); see 
generally Pamela Kentra, Hear No Evil, See No Evil, Speak No 
Evil: The Intolerable Conflict for Attorney-Mediators Between the 
Duty to Maintain Mediation Confidentiality and the Duty to Report 
Fellow Attorney Misconduct, 1997 B.Y.U.L. Rev. 715, 740-751. The 
failure to provide an exception for such evidence would mean that 
lawyers and fiduciaries could act unethically or in violation of 
standards without concern that evidence of the misconduct would 
later be admissible in a proceeding brought for recourse. This 
exception makes it possible to use testimony of anyone except the 
mediator 
in proceedings at which 
such 
a 
claim is made 
or 
defended. Because of the potential adverse impact on a mediator's 
appearance of impartiality, the use of mediator testimony is more 
guarded, and therefore protected by Section 6(c). It is important 
to note that evidence fitting this exception would still be 
protected in other types of proceedings, such as those related to 
the dispute being mediated. 
Reporting requirements operate independently of the privilege and 
this exception. Mediators and other are not precluded by the Act 
from reporting misconduct to an agency or tribunal other than one 
that might make a ruling on the dispute being mediated, which is 
precluded by Section 8(a) and (b). 
8; Section 6(a)(7). Evidence of abuse or neqlect. 
An exception for child abuse and neglect is common in domestic 
mediation confidentiality statutes, and the Act reaffirms these 
important policy choices States have 
made 
to protect their 
citizens. See, e.g., Iowa. 
Code Ann. Section 679c.3(4) 
(1998) 
(general); Kan. Stat. Ann. Section 23-605(b)(2) (1999) (domestic 
relations); Kan. Stat. Ann. Section 38-1522(a) (1997) (general); 
Kan. Stat. Ann. Section 44-817@ )(2) (1996) (labor); Kan. Stat. 
Ann. 
Section 72-5427(e)(2) 
(1996) 
(teachers); 
Kan. Stat. Ann. 
Section 75-4332(d)(1) 
(1996) 
(public employment); 
Minn. 
Stat. 
Ann. Section 595.02(2)(a)(5) (1996) 
(general); Mont. 
Code Ann. 
Section 41-3-404 
(1999) 
(child abuse investigations) 
(mediator 
may not be compelled to testify); Neb. Rev. Stat. Section 43-2908 
(1993) (parenting act) (in camera); N.H. Rev. Stat. Ann. Section 
328-C:9(III)(c) 
(1998) 
(marital); 
N.C. 
Gen. 
Stat. 
Section 
7A-38.1(L) 
(1999) 
(superior 
court); 
N.C. 
Gen. 
Stat. 
Section 
7A-38.4(K) (1999) (district courts); Ohio Rev. Code Ann. Section 
3109.052(c) 
(West 1990) 
(child custody); 
Ohio Rev. 
Code 
Ann. 
Section 5123.601 (West 1988) (mental retardation); Ohio Rev. Code 
Ann. 
Section 2317.02 
(1998) 
(general); Or. 
Rev. Stat. Section 
36.220(5) 
(1997) 
(general); 
Tenn. 
Code 
Ann. 
Section 
36-4-130(b)(5) 
(1993) 
(divorce); 
Utah 
Code 
Ann. 
Section 
30-3-38(4) 
(2000) 
(divorce) 
(mediator shall report); Va. 
Code 
Ann. 
Section 
63.1-248.3(A)(10) 
(2000) 
(welfare); 
Wis. 
Stat. 
Section 48.981(2) 
(1997) (social services): Wis. Stat. Section 
904.085(4)(d) 
(1997) 
(general); 
Wyo. 
Stat. 
Section 
1-43-103(c)(iii) (1991) (general). But see Ariz. Rev. Stat. Ann. 
Section 
8-807 (B) 
(West 
1998) 
(child 
abuse 
investigations) 
(rejecting rule of disclosure). 
By referring to "child and adult protective services agency," the 
exception broadens 
the 
coverage 
to 
include 
the elderly and 
disabled if that State has protected them by statute and has 
created an agency enforcement process. It should be stressed that 
this exception applies only to permit disclosures in public 
agency proceedings in which the agency is a party or nonparty 
participant. The exception does not apply in private actions, 
such as divorce, because the need for the evidence is not as 
great as in proceedings brought to protect against abuse and 
neglect so that the harm can be stopped, and is outweighed by the 
policy of promoting candor during mediation. For example, in a 
mediation between Husband and Wife who are seeking a divorce, 
Husband admits to sexually abusing a child. Husband's admission 
would not be privileged in an action brought by the public agency 
to protect the child, but would be privileged in the divorce 
hearings. 
The last bracketed phrases make an exception to the exception to 
privilege 
of 
mediation 
communications 
in certain 
mediations 
involving such public agencies. Child protection agencies in many 
States have created mediation programs to resolve issues that 
arise because of allegations of abuse. Those advocating the use 
of mediation in these contexts point to the need for privilege to 
promote the use of the process, and these alternatives provide 
it. 
National 
Council 
of 
Juvenile 
and 
Family 
Court 
Judges, 
Resource Guidelines; Improving the Child Abuse and Neglect Court 
Process, 1995. These alternatives are bracketed and offered to 
the states as recommended model provisions because of concerns 
raised by some mediators of such cases that mediator testimony 
sometimes can be necessary and appropriate to secure the safety 
of a vulnerable party in a situation of abuse. See Letter from 
American 
Bar 
Association 
Commission 
on 
Mental 
and 
Physical 
Disability 
Law, 
November 
15, 
2000 
(on 
file 
with 
Drafting 
Committees). 
The words "child or adult 
States 
using 
a 
different 
disputes arising from abuse 
appropriate language. 
protection" are bracketed so that 
term 
or 
encouraging 
mediation 
of 
of other protected classes can add 
Each state may chose to enact either Alternative A or Alternative 
B. The Alternative A exception only applies to cases referred by 
the 
court or public 
agency. 
In this situation, 
allegations 
already have been made in an official context and a court has 
made the determination that settlement of that case is in the 
public interest by referring it to mediation. In Alternative B 
exception, 
no 
court referral is required. 
A state enacting 
Alternative B would be adopting a policy that it is sufficient 
that the public agency favors settlement of a particular case by 
its participation in the mediation. 
The term "public agency" may have to be modified in a State in 
which a private agency is charged by law to assume the duties to 
protect children in these contexts. 
9. Section 6(b). Exceptions requiring demonstration of need. 
The exceptions under this Section constitute less common fact 
patterns that may sometimes justify carving an exception, but 
only 
when 
the 
unique 
facts 
and 
circumstances 
of 
the 
case 
demonstrate that the evidence is otherwise unavailable, and the 
need for the evidence outweighs the policies underlying the 
privilege. Thus, Section 6(b) effectively places the burden on 
the proponent to persuade the court on these points. The evidence 
will not be disclosed absent a finding on these points after an 
in camera hearing. Further, under Section 6(d) the evidence will 
be admitted only for that limited purpose. 
10. Section 6(b)(1). Felony [and misdemeanors]. 
As noted in the commentary to Section 6, point 5, the Act affords 
more 
specialized 
treatment 
for 
the 
use 
of 
mediation 
communications in subsequent felony proceedings, which reflects 
the unique character, considerations, and concerns that attend 
the need for evidence in the criminal process. States may also 
wish to extend this specialized treatment to misdemeanors, and 
the Drafters offer appropriate model language for states in that 
event. 
Existing privilege statutes are silent or split as to whether 
they apply only to civil proceedings, apply also to some juvenile 
or misdemeanor proceedings, or apply as well to all criminal 
proceedings. The split among the States reflects clashing policy 
interests. One the one hand, mediation participants operating 
under the benefit of a privilege might reasonably expect that 
statements made in mediation would not be available for use in a 
later felony prosecution. The candor this expectation promotes is 
precisely that which the mediation privilege seeks to protect. It 
is also the basis upon which many criminal courts throughout the 
country 
have 
established 
victim-offender 
mediation 
programs, 
which 
have 
enjoyed 
great 
success 
in 
misdemeanor, 
and, 
increasingly, 
felony 
cases. 
See 
generally 
Nancy 
Hirshman, 
Mediating Misdemeanors: Big Successes in Smaller Cases, 7 Disp. 
Resol Mag. 
(Fall 2000); Mark S. Umbreit, 
The Handbook of 
Victim Offender Mediation (2001). 
Public policy, 
for example, 
specifically 
supports 
the 
mediation 
of 
gang 
disputes, 
for 
example, and these programs may be less successful if the parties 
cannot discuss the criminal acts underlying the disputes. Cal. 
Penal Code Section 13826.6 (West 1996) (mediation of gang-related 
disputes); Colo. Rev. Stat. Section 22-25-104.5 (1994) (mediation 
of gang-related disputes). 
On 
the other hand, 
society's need for evidence to avoid an 
inaccurate decision is greatest in the criminal context -
both 
for evidence that might convict the guilty and exonerate the 
innocent -- because the stakes of human liberty and public safety 
are 
at 
their 
zenith. 
For 
this 
reason, 
even 
without 
this 
exception, the courts can be expected to weigh heavily the need 
for the evidence in a particular case, and sometimes will rule 
that the defendant's constitutional rights require disclosure. 
See Rinaker v. Superior Court, 74 Cal. Rptr. 2d 464, 466 (Ct. 
App. 1998) (juvenile's constitutional right to confrontation in 
civil juvenile delinquency trumps mediator's statutory right not 
to be called as a witness); State v. Castellano, 460 So.2d 480 
(Fla. 
App. 
1984) 
(statute excluding evidence of an offer of 
compromise presented to prove liability or absence of liability 
for 
a 
claim or its value 
does 
not preclude mediator 
from 
testifying in a criminal proceeding regarding alleged threat made 
by one party to another in mediation). See also Davis v. Alaska, 
u.S. 308 (1974). 
After 
great 
consideration 
and 
public 
comment, 
the 
Drafting, 
Committees decided to leave the critical balancing of these 
competing interests to the sound discretion of the courts to 
determine 
under 
the 
facts 
and 
circumstances 
of 
each 
case. 
Critically, it is drafted in a manner to ensure that the same 
right to evidence introduced by the prosecution, thus assuring a 
level playing field. In addition, it puts the parties on notice 
of this limitation on confidentiality. 
11. Section 6(b) (2). Va1idity and enforceability of settlement 
agreement. 
This 
exception is designed to preserve traditional contract 
defenses to the enforcement of the mediated settlement agreement 
that relate to the integrity of the mediation process, which 
otherwise 
would 
be 
unavailable 
if 
based 
on 
mediation 
communications. 
A recent Texas 
case provides an example. 
An 
action 
was 
brought 
to 
enforce 
a 
mediated 
settlement. 
The 
defendant raised the defense of duress and sought to introduce 
evidence that he had asked the mediator to permit him to leave 
because of chest pains and a history of heart trouble, and that 
the mediator had refused to let him leave the mediation session. 
See Randle y. Mid Gulf. Inc., No. 14-95-01292, 1996 WL 447954 
(Tex App. 
1996) 
(unpublished). The exception might also allow 
party testimony in a personal injury case that the driver denied 
having insurance, causing the plaintiff to rely and settle on 
that basis, where such a misstatement would be a basis for 
reforming or avoiding liability under the settlement. Under this 
exception the evidence will not be privileged if the weighing 
requirements are met. This exception differs from the exception 
for a record of an agreement in Section 6 (a) (1) in that Section 
6(a)(1) only exempts the admissibility of the record of the 
agreement itself, while the exception in Section 6(b)(2) is 
broader in that it would permit the admissibility of other 
mediation 
communications 
that are necessary to establish or 
refute 
a 
defense to 
the validity of 
a 
mediated settlement 
agreement. 
12. Section 6(c). Mediator not compe11ed. 
Section 6(c) 
allows 
the mediator 
to decline 
to testify or 
otherwise provide 
evidence 
in 
a 
professional misconduct 
and 
mediated settlement enforcement cases to protect against frequent 
attempts to use the mediator as a tie-breaking witness, which 
would undermine the integrity of the mediation process and the 
impartiality of the individual mediator. Nonetheless, the parties 
and others may testify or provide evidence in such cases. 
This Section is discussed in the comments to Sections 6(a)(7) 
6(b)(2). 
The 
mediator 
may still testify voluntarily if 
exceptions apply, or the parties waive their privilege, but 
mediator may not be compelled to do so. 
and 
the 
the 
13. Section 6(d). Limitations on exceptions. 
This Section makes clear the limited use that may be made of 
mediation communications that are admitted under the exceptions 
delineated in Sections 6(a) and 6(b). For example, if a statement 
evidencing child abuse is admitted at a proceeding to protect the 
child, the rest of the mediation communications remain privileged 
for that proceeding, and the statement of abuse itself remains 
privileged for the pending divorce or other proceedings. 
§10007. Prohihited mediator re,ports 
1. 
Prohibited 
conmunication 
by 
mediator. 
Except 
as 
required in subsection 2. 
a mediator may not make a 
report. 
assessment. 
evaluation. 
recommendation. 
finding 
or 
other 
communication regarding a mediation to a court. administrative 
agency or other authority that may make a ruling on the dispute 
that is the subject of the mediation. 
2. 
Permitted cOmnnmi cation by mediator. 
A mediator may 
disclose: 
A. 
Whether 
the 
mediation 
occurred 
or 
has 
terminated. 
whether a settlement was reached and attendance; 
B. 
A mediation communication as permitted under section 
10006; or 
c. 
A mediation communication evidencing abuse. 
neglect. 
abandonment or exploitation of an individual to a public 
agency responsible for protecting individuals against such 
mistreatment. 
'I 
3. 
Communication may not be considered. 
A communication 
made in violation of subsection 1 may not be considered by a 
court. administrative agency or arbitrator. 
REPORTER'S BOrES 
1. Section 1. Disclosures by the mediator to an authority that 
may make a rul.ing on the dispute being mediated. 
Section 
(a) 
prohibits 
communications 
by 
the 
mediator 
in 
prescribed circumstances. 
In contrast to the privilege, which 
gives a right to refuse to provide evidence in a subsequent legal 
proceeding, this Section creates a prohibition against disclosure. 
Some states have already adopted similar prohibitions. See, e.g., 
Cal. Evid. Code Section 1121 (West 1997); Fla. Stat. Ann. Section 
373.71 (1999) 
(water resources); Tex. Civ. Prac. & Rem. 
Code 
Section 
154.053 
(c) 
(West 
1999) 
(general). 
Disclosures 
of 
mediation communications to a 
judge also could run afoul of 
prohibi tions against ex parte communications with judges. See 
Code of Conduct for Federal Judges, Canon 3(A)(3), 175 F.R.D. 
364, 367 (1998); American Bar Association Model Code of Conduct 
of Judicial 
Conduct at 9. 
The 
purpose of this Section is 
consistent with 
the 
conclusions 
of 
seminal 
reports 
in the 
mediation field condemn the use of such reports as permitting 
coercion 
by 
the 
mediator 
and 
destroying 
confidence 
in 
the 
neutrality of the mediator and in the mediation process. See 
Society 
for 
Professionals 
in 
Dispute 
Resolution, 
Mandated 
Participation and Settlement Coercion: Dispute Resolution as it 
Relates to the Courts (1991); 
Center for Dispute Settlement, 
National Standards for Court-Connected Mediation Programs (D.C. 
1992). 
Importantly, 
the prohibition is limited to reports or other 
listed communications to those who may rule on the dispute being 
mediated. While the mediators are thus constrained in terms of 
reports to courts and others that may make rulings on the case, 
they 
are 
not 
prohibited 
from 
reporting 
threatened 
harm 
to 
appropriate 
authorities, 
for 
example, 
if 
learned 
during 
a 
mediation to settle a civil dispute. In this regard, Section 
7(b)(3) 
responds to public concerns about clarity and makes 
explicit what is otherwise implied in the Act, that mediators are 
not constrained by this Section in their ability to disclose 
threats to the safety and well being of vulnerable parties to 
appropriate 
public 
authorities, 
and 
is 
consistent with 
the 
exception for 
disclosure in proceedings 
in Section 6(a)(7). 
Similarly, while the provision prohibits mediators from making 
these reports, it does not constrain the parties. 
The 
communications 
by 
the 
mediator 
to 
the 
court or 
other 
authority are broadly defined. The provisions would not permit a 
mediator to communicate, for example, on whether a particular 
party engaged in "good faith" negotiation, or to state whether a 
party had been "the problem" in reaching a settlement. Section 
7(b)(l), however, 
does permit disclosure of particular facts, 
including attendance and whether a settlement was reached. For 
example, a mediator may report that one party did not attend and 
another attended only for the first five minutes. States with 
"good faith" mediation laws or court rules may want to consider 
the interplay between such laws and this Section of the Act. 
§10008. Confidentiality 
Unless 
subject 
to Title 
1, 
chapter 
13, 
subchapter 
1, 
mediation communications are confidential to the extent agreed by 
the parties or provided by other law or rule of this State. 
REPORTER • S lfOTES 
This Section restates the general rule in the states regarding 
the 
confidentiality 
of 
mediation 
communications 
outside 
the 
context of proceedings. 
Typically, confidentiality agreements are enforceable against a 
signatory under state contract law, through damages and sometimes 
specific enforcement. See, e.g., Doe v. Roe, 93 Misc.2d 201, 400 
N.Y.S.2d 668 (1977). This furthers the Act's underlying policy of 
party self-determination by permitting the parties to determine 
whether, 
when, 
and 
how 
statements made 
in mediation may be 
disclosed to friends, family members, business associates, the 
media 
and 
other 
third parties 
outside 
the 
context 
of 
proceedings that are covered by the privilege. It also draws a 
clear line to better guide the parties. 
Section 8 was the culmination of efforts in several drafts to 
understand and manage the reasonable expectations of mediation 
participants regarding disclosures outside of proceedings. Early 
drafts were criticized by some in the mediation community for 
failing to impose an affirmative duty on mediation participants 
not to disclose mediation communications to third persons outside 
of 
the 
context of 
the 
proceedings at which 
the 
Section 
privilege applies. 
In several subsequent drafts, the Drafters 
attempted 
to 
establish 
a 
rule 
that 
would 
prohibit 
such 
disclosures, but found it impracticable to do so without imposing 
a severe risk of civil liability on the many unknowing mediation 
participants who might discuss their mediations with friends and 
family members, for example, for any number of salutary reasons. 
I 
In addition, 
the Drafters were deeply concerned about their 
capacity to develop a truly comprehensive list of legitimate and 
appropriate exceptions -- such as for the education and training 
of mediators, for the monitoring evaluation and improvement of 
court-related mediation 
programs, 
and 
for 
the 
reporting 
of 
threats to police and abuse to public agencies -
as each draft 
drew forth more calls for legitimate and appropriate exceptions. 
Similarly, efforts to create a simpler rule with fewer exceptions 
but with greater judicial discretion to act as appropriate on a 
case-by-case basis to prevent 
"manifest injustice" 
also 
met 
severe resistance from many different sectors of the mediation 
communi ty, as well as a 
number of state Bar ADR 
committees. 
Finally, recognizing the important role of non-lawyer mediators 
and the many people who participate in mediations without counsel 
or knowledge of the law, the Drafters were concerned about the 
intelligibility and accessibility of the provisions. 
In the end, the Drafters ultimately chose to draw a clear line, 
and to follow the general practice in the states of leaving the 
disclosure of mediation communications outside of proceedings to 
the good judgment of the parties to determine in light of the 
unique characteristics and circumstances of their dispute. 
Finally, special note should be made of the language "or provided 
by other law or rule of this State. " This language has 
two 
critical effects. First, it makes clear that the Act does not 
preempt current court rules or statutes that may impose a duty of 
confidentiality outside of proceedings. See Texas Civ. Prac. 
& 
Rem. 
Section 
154.073 
(a) 
(arguably 
imposing 
a 
duty 
of 
non-disclosure outside the context of proceedings). Second, the 
language "or provided by other law or rule of this State" also 
puts parties on notice that the parties' capacity to contract for 
this aspect of confidentiality, while broad, is subject to the 
limitations of existing State law. This recognizes the important 
policy choices that the State already has 
made 
through its 
various mechanisms of law. 
For example, such a contract would be subject to the rule in some 
states that 
would 
permit 
or 
require 
a 
mediator 
to 
reveal 
information if there is a present and substantial threat that a 
person will suffer death or substantial bodily harm if the 
mediator fails to take action necessary to eliminate the treat. 
See, e.g., Tarasoff v. Regents of the University of California, 
P.2d 334 (Cal. 1976) (en banc) (permitting action against 
psychotherapist who knows of a patient's dangerousness and fails 
to warn the potential victim). The mediator in such a case may 
first wish to secure a determination by a court, in camera, that 
the facts of the particular case justify or indeed dictate 
divulging the information to prevent reasonably certain death or 
substantial bodily harm. See, for example, ABA Rule 1.6(b)(1) and 
accompanying 
commentary; 
U.S.C. 
Section 574(a)(4)(C). 
This 
result is consistent with the ABA/AAA/SPIDR Model Standards of 
Conduct for Mediators, and the American Bar Association's revised 
the Standards of Conduct for Attorneys. 
In addition, under contract law the courts may make exceptions to 
enforcement 
for 
public 
policy 
reasons. 
See, 
e.g., 
Equal 
Employment Opportunity Commission v. Astra USA, 94 F.3d 738 (1st 
Cir. 
1996). 
Such agreements are typically not enforceable by 
non-signatories. They are also not enforceable if they conflict 
with public records requirements. 
See, 
e.g. 
Anchorage School 
Dist. 
v. 
Anchorage Daily News, 
P.2d 1191 
(Alaska 1989); 
Pierce v. St. Vrain Valley School District, 1997 WL 94120 (Colo. 
Ct. App. Div. 1 1997). The use of mediation communications as 
evidence in proceedings is governed by Section 4-7, 
and the 
signatories of a confidential agreement cannot expand the scope 
of the privilege. 
§10009. Mediator's disclosure of conflicts of interest: background 
1. 
Conflicts of interest: 
inguir.y: 
disclosure. 
Before 
accepting a mediation. an individual who is requested to serve as 
a mediator shall: 
A. 
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 mediation party or 
foreseeable participant in the mediation: and 
B. 
Disclose any such known fact to the mediation parties as 
soon as is practical before accepting a mediation. 
2. 
Disclosure after aCCEWting mediation. 
If a mediator 
learns any fact described in subsection 1. paragraph A after 
accepting a mediation. the mediator shall disclose it as soon as 
is practicable. 
3. 
Disclosure of gpalifications. 
At the request of 
a 
mediation party. an individual who is reg:uested to serve as a 
mediator shall disclose the mediator's g:ualifications to mediate 
a dispute. 
4. 
Privilege 
unavailable. 
A 
person 
that 
violates 
subsection I. 
2. 
or 7 is precluded by the violation from 
asserting a privilege under section 10004. 
I 
5. 
A»»lication to judge. 
Subsections 1, 2, 3 and 7 do not 
apply to an individual acting as a judge. 
6. 
S,pecial qualification not required. 
This chapter does 
not require that a mediator have 
a 
special qualification by 
background or profession. 
7. 
Iamartial: agreement otherwise. 
A mediator shall be 
impartial, unless after disclosure of the facts required to be 
disclosed in subsections 1 and 2, the parties agree otherwise. 
REPORTER'S NOTES 
1. Sections 9(a) and 9(b). Disclosure of mediator's conflicts o~ 
interest. 
a. In general. 
. 
This Section provides legislative support for the professional 
standards requiring mediators to disclose their conflicts of 
interest. See, e.g, American Arbitration Association, American 
Bar Association & Society of Professionals in Dispute Resolution, 
Model Standards of Conduct for Mediators, Standard III (1995); 
Model Standards of Practice for Family and Divorce Mediation, 
Standard 
IV 
(200l); 
National 
Standards 
for 
Court-Connected 
Mediation Programs, Standard 8.l(b} (1992). It is consistent with 
the ethical obligations 
imposed 
on other 
ADR 
neutrals. 
See 
Revised Uniform Arbitration Act 
(2000) 
Section 12; 
Code 
of 
Professional Responsibility for Arbitrators of Labor-Management 
Disputes, Section 2(B) (1985) (required disclosures). 
Sections 7(a)(2) and 7(b) make clear that the duty to disclose is 
a continuing one. 
b. Reasonable duty of inquiry 
The phrase in Section 9(b} (I) "make an inquiry that is reasonable 
under the circumstances" makes clear that the mediator's burden 
of inquiry into possible conflicts is not absolute, but rather is 
one that is consistent with the purpose of the Section: to make 
the parties aware of any conflict of interest that could lead the 
parties to believe that the mediator has 
an interest in the 
outcome of the dispute. Such disclosure fulfills the reasonable 
expectations 
of 
the 
parties, 
and 
furthers 
the 
Act's 
core 
principles of party self-determination and informed consent by 
assuring the parties that they will have sufficient information 
about the mediator's potential conflicts of interests to make the 
determination about whether that mediator is acceptable for the 
dispute at hand. 
One may reasonably anticipate many situations 
are willing to waive a conflict of interest; 
in which parties 
indeed, depending 
upon the dispute, the very fact that a mediator is familiar to 
both parties may best qualify the mediator to mediate that 
dispute. That choice, however, properly belongs to the parties 
after informed consent, 
and in preserving this autonomy, this 
provision not only confirms the integrity of the individual 
mediator, 
but also 
supports 
the integrity of the mediation 
process 
by 
providing 
a 
visible, 
fundamental, 
and 
familiar 
safeguard of public protection. 
Critically, the reasonable inquiry language is also intended to 
convey the Drafters' intent to exclude inadvertent failures to 
disclose that would result in the loss of the mediator privilege. 
The duty of reasonable inquiry is specific to each mediation, and 
such an inquiry always would discover those conflicts that are 
sufficiently material as to call for disclosure. For example, 
stock ownership in a company that is a party to an employment 
discrimination matter that is being mediated would likely be 
identified under a reasonable inquiry, and should be disclosed to 
both parties 
under 
Section 
9(a). 
On 
the 
other 
hand, 
less 
substantial or merely arguable conflicts of interest may not be 
discoverable 
upon 
reasonable 
inquiry and that may 
therefore 
result 
in 
inadvertent 
nondisclosure. 
In 
the 
foregoing 
hypothetical, for example, the mediator may not be aware, or have 
any reason to be aware, that he or she has membership in the same 
country club as an officer or board member of the company. The 
failure to disclose this arguable conflict would be inadvertent, 
not a violation of Section 9(a) or (b), and therefore not subject 
to the loss of privilege sanction in Section 9(d). 
The reasonable inquiry also depends on the circumstances. For 
example, if a small claims court refers parties to a mediator who 
has a volunteer attorney standing in court, the parties would not 
expect that mediator to check on conflicts with all lawyers in 
the mediator's firm in the five minutes between referral and 
mediation. Presumably, only conflicts known by the mediator would 
affect that mediation in any event. 
c. Conf1icts that must be disc10sed 
Section 9 (b) (1) expressly states that mediators should disclose 
financial or personal interests, and personal relationships, that 
a 
"reasonable 
person 
would 
consider 
likely 
to 
affect 
the 
impartiali ty of the mediator." However, the Drafters chose the 
word "including" to convey their intent that these types of 
conflicts not be viewed as an exclusive list of that which must 
be disclosed. Again, the standard is one of reasonableness under 
the circumstances, 
given the Section's purpose in furthering 
informed consent and the integrity of the mediation process. 
It should be stressed that the Drafters recognize that it is 
sometimes difficult for the practitioner to know precisely what 
I 
must be disclosed under 
a 
reasonableness 
standard. 
Prudence, 
professional reputation, and indeed common practice would compel 
the practitioner to err on the side of caution in close cases. 
Moreover, 
mediators 
with 
full-time 
or 
otherwise 
extensive 
mediation practices may wish to avail themselves of the common 
technologies used by law firms to identify conflicts of interest. 
Finally in this regard, it is worth underscoring that this duty 
to disclose conflicts of interest is intended to further party 
self-determination and the integrity of the mediation process, 
and is not intended to provide a cover or vehicle for bad faith 
litigation tactics, such as fishing expeditions into a mediator's 
professional or personal background. Such conduct would continue 
to be subject to traditional sanction standards. 
2. Section 9(c) and (f). Disclosure of mediator's qua1ifications 
Sections 
9(c) 
and 
(f) 
address 
the 
issue 
of 
mediator 
qualifications, and, like the conflicts of interest provision, 
are intended to further principles of party autonomy and informed 
consent. In particular, these Sections do not require mediators 
to have certain qualifications, specifically including a 
law 
degree; nor, unlike the conflicts of interest provision, do they 
impose 
an 
affirmative 
duty 
on 
the 
mediator 
to 
disclose 
qualifications. Rather, the mediator's obligation is responsive: 
if a party asks for the mediator's qualifications to mediate a 
particular 
dispute, 
the 
mediator 
must 
provide 
those 
qualifications. 
In some situations, the parties may make clear that they care 
about the mediator's substantive knowledge of the context of the 
dispute, or that they want to know whether the mediator in the 
past has used a purely facilitative mediation process or instead 
an evaluative approach. Compare Leonard L. Riskin, Understanding 
Mediators' Orientations, Strategies, and Techniques: A Grid for 
the Perplexed, 1 Harv. Negotiation L. Rev. 7 (1996) with Joseph 
B. 
Stulberg, 
Facilitative 
Versus 
Evaluative 
Mediator 
Orientations: Piercing The "Grid" Lock, 24 Fla. State Univ. L. 
Rev. 
(1997); see generally Symposium, Fla. State Univ. L. 
Rev. 
(1997). Experience mediating would seem important to some 
parties, 
and 
indeed 
this 
is 
one 
aspect 
of 
the 
mediator's 
background that has been shown to correlate with effectiveness in 
reaching settlement. See, e.g., Jessica Pearson & Nancy Thoennes, 
Divorce Mediation Research Results, in Divorce Mediation: Theory 
and Practice, 429, 436 (Folberg & Milne, eds., 1988); Roselle L. 
Wissler, A Closer Look at Settlement Week, 4 Disp. Resol. Mag. 28 
(Summer 1998). 
It must be stressed that the Act does not establish mediator 
qualifications. No consensus has emerged in the law, research, or 
commentary as to those mediator qualifications that will best 
produce effectiveness or fairness. As clarified by Section 9(f), 
mediators 
need 
not 
be 
lawyers. 
In 
fact, 
the 
American 
Bar 
Association Section on Dispute Resolution has issued a statement 
that "dispute resolution programs should permit all individuals 
who 
have appropriate training and qualifications to serve as 
neutrals, regardless of whether they are lawyers." ABA Section of 
Dispute Resolution Council Res., April 28, 1999. 
At the same time, 
the law and commentary recognize that the 
quality of the mediator is important and that the courts and 
public agencies referring cases to mediation have a heightened 
responsibility to assure it. See generally Cole et al., supra, 
Section 
11.02 
(discussing 
laws 
regarding 
mediator 
qualifications); 
Center 
for 
Dispute 
Settlement, 
National 
Standards for Court-Connected Mediation Programs (1992); Society 
for 
Professionals 
in 
Dispute 
Resolution 
Commission 
on 
Qualifications, Qualifying Neutrals: The Basic Principles (1989); 
Society for Professionals in Dispute Resolution Commission on 
Qualifications, 
Ensuring 
Competence 
and 
Quality 
in 
Dispute 
Resolution Practice (1995); Society for Professionals in Dispute 
Resolution, 
Qualifying 
Dispute 
Resolution 
Practitioners: 
Guidelines for Court-Connected Programs (1997). 
The 
decision of 
the Drafting Committees 
against prescribing 
qualifications should not be interpreted as a disregard for the 
importance 
of 
qualifications. 
Rather, 
respecting 
the 
unique 
characteristics that may qualify a particular mediator for 
a 
particular mediation, 
the 
silence 
of 
the 
Act 
reflects 
the 
difficulty of addressing the topic in a uniform statute that 
applies to mediation in a variety of contexts. Qualifications may 
be important, but they need not be uniform. It is not the intent 
of the Act to preclude a statute, court or administrative agency 
rule, arbitrator or contract between the parties from requiring 
that a mediator have a particular background or profession; those 
decisions 
are 
best 
made 
by 
individual 
states, 
courts, 
governmental entities, and parties. 
3. 
Section 9(d). 
Violation of disclosure 
[and impartiality] 
requirements. 
a. In general 
This provision makes clear that the mediator who violates the 
disclosure requirements of Sections 9(a) or (b) may not refuse to 
disclose a mediation communication or prevent another person from 
disclosing a mediation communication of the mediator, pursuant to 
Section 4(b)(2). If a state adopts the impartiality provision of 
Section 9( f), 
a violation of that provision triggers the same 
denial 
of 
the 
privilege. 
Only 
those 
states 
adopting 
the 
impartiality provision should adopt the second bracket [(a), (b), 
or (g)]; all other states should adopt the first bracket [(a) or 
(b)] • 
I 
b. 
Onl.y mediator privilege lost; party, 
nonparty participant 
privileges remain intact 
Crucially, while the mediator who fails to comply with the Act's 
conflicts of interest and impartiality requirements loses the 
privilege for purpose of that mediation, the parties and the 
non-party participants retain their privilege for that mediation. 
Thus, 
in 
a 
situation in 
which 
the 
mediator 
has 
lost 
the 
privilege, for example, 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. 
Similarly, 
to the extent the mediator's purported 
testimony would 
be 
about 
the mediation 
communications 
of 
a 
nonparty participant, 
the nonparty participant may block the 
testimony if the mediator has lost the privilege. 
The only person prejudiced by the violation is the mediator who 
failed to disclose a conflict [or who had a bias in the dispute], 
and as such the loss of privilege provides an important but 
narrowly tailored measure of accountability. Section 9(d) makes 
clear that mediators cannot avoid testifying in such situations. 
The Drafters considered other sanctions for mediators who failed 
to disclose conflicts [or who were partial], such as criminal and 
civil sanctions. However, it rejected specifically providing for 
those options because of the possibility of discouraging people 
from 
becoming mediators, 
and 
because 
the 
loss of privilege 
sanction was deemed to be tailored to the precise harm caused by 
the violation. 
c. Practical operation 
The loss of privilege in this narrow context raises important 
practical questions with regard to how a party or a nonparty 
participant would know that the mediator may lose, or has lost, 
the privilege with respect to a particular mediation. This is 
significant because they should have the opportunity to decide 
whether they wish to assert their own privilege and block the 
mediator's testimony to the extent permitted by the privilege, or 
to permit the testimony, consistent with the Act's underlying 
premises of party autonomy and informed consent. 
As a practical matter, notice is not likely to be a concern in 
the typical case in which the mediation communications evidence 
is being sought in an action to set aside the mediated settlement 
agreement, or in a professional misconduct proceeding or action, 
arising out of the conflict of interest. The parties would be 
aware of the loss of privilege, and indeed, the loss of the 
privilege is consistent with the exceptions 
permitting 
such 
testimony in cases to establish the validity of the settlement 
agreement or professional misconduct. 
See Sections 6 (a) (6) and 
6(b)(2). 
However, in the more remote situation in which these exceptions 
would not be applicable, and the mediator's testimony is sought 
under a claim that the privilege has been lost by virtue of the 
mediator's failure to disclose a conflict of interest, the notice 
issue becomes more problematic. It may be expected that the 
mediator would give notice to the other mediation participants 
who may be affected by such a request. It may also be expected 
under usual customs and practices that the party seeking the 
privileged testimony would move the matter before a court and 
provide notice to all interested persons who would have the right 
to assert the privilege. 
For 
a 
challenge 
to the mediation 
privilege, 
those 
interested parties 
would 
be 
the 
mediator, 
parties, 
and nonparty participants. 
In 
any 
event, 
mediation 
participants are advised to consider including notice prov~s~ons 
in their agreements to mediate that call for participants who 
receive subpoenas for privileged testimony to provide notice to 
the other partic~pants of such a request. 
As 
with the exceptions 
recognized 
under 
this Act, 
the 
Act 
anticipates that the question of whether a privilege has been 
lost would typically be decided by courts in an in camera 
proceeding 
that 
would 
preserve 
the 
confidentiality 
of 
the 
mediation communications that may be necessary to establish the 
validity of the loss of privilege claim. The materiality of the 
failure to disclose is not likely to be in issue in the more 
common situations in which the mediator's testimony is being 
sought in a case other than to establish the invalidity of a 
mediated settlement agreement or professional misconduct arising 
from 
the failure to disclose. 
However, 
in those rare other 
situations in which the mediator's testimony is being sought, the 
proponent 
of 
the 
evidence 
may 
also 
need 
to establish 
the 
materiality of the failure to disclose. 
4. Section 9(e). Individual actinq as a judqe. 
This Section averts a legislative prohibition on certain judicial 
actions, and defers to other more appropriate regulation of the 
judiciary. It extends the principles embodied in Section 3(b)(3), 
which places mediations conducted by judges who might make a 
ruling on the case outside the scope of the Act. The rationales 
described therein apply with equal force in this context. 
5. [Section 9(q). Mediator impartiality.] 
This provision is a bracketed to signal that it is suggested as a 
model 
provision 
and 
need 
not 
be 
part 
of 
a 
Uniform 
Act. 
"Impartiality" has been equated with "evenhandedness" in the 
Model 
Standards 
of 
Practice 
approved 
by 
the 
American 
Bar 
Association, American Association of Arbitrators, and the Society 
of Professionals 
in Dispute Resolution 
(now Association 
for 
Conflict Resolution). 
The mediator's employment situation may 
present difficult issues regarding impartiality. A mediator who 
is employed by one of the parties is not typically viewed as 
impartial, especially if the person who mediates also represents 
a 
party. 
In 
the 
representation 
situation, 
the 
mediator's 
overriding responsibility is toward a single party. For example, 
the parties' legal counsel would not be an impartial mediator. 
Ombuds often are obligated by ethical standards to be impartial, 
although they are employed by one of the parties. 
While few would argue that it is almost always best for mediators 
to be 
impartial as 
a matter of practice, 
including such 
a 
requirement into a 
uniform law drew considerable controversy. 
Some mediators, reflecting a 
deeply and sincerely felt value 
within the mediation community that a mediator not be predisposed 
to favor or disfavor parties in dispute, persistently urged the 
Drafters to enshrine this value in the Act; 
for these, 
the 
failure to include the notion of impartiality in the Act would be 
a distortion of the mediation process. Other mediators, service 
providers, 
judges, 
mediation 
scholars, 
however, 
urged 
the 
Drafters not to include the term "impartiality" for a variety of 
reasons. 
At least three are worth stressing. One pressing concern was that 
including such a statutory requirement would subject mediators to 
an unwarranted exposure to civil lawsuits by disgruntled parties. 
In this regard, mediators with a more evaluative style expressed 
concerns that the common practice of so-called "reality checking" 
would be used as a basis for such actions against the mediator. A 
second major concern was over the workability of such a statutory 
requirement. 
Scholarly 
research 
in 
cognitive 
psychology 
has 
confirmed many hidden but common biases that affect judgment, 
such as attributional distortions of judgment and inclinations 
that 
are 
the 
product 
of 
social 
learning 
and 
professional 
culturation. See generally, Daniel Kahneman and Amos Tversky, 
Choices, Values, and Frames (2000); Scott PIous, The Psychology 
of Judgment and Decision Making (1993). Similarly, mediators in 
certain contexts 
sometimes have an ethical or felt duty to 
advocate on behalf of a party, such as long-term care ombuds in 
the health care context. Third, 
some parties seek to use 
a 
mediator who has a duty to be partial in some respects--such as a 
domestic mediator who is charged by law to protect the interests 
of the children. It has been argued that such mediations should 
still be privileged. 
For these and other reasons, the Drafting Committees determined 
that impartiality, like qualifications, was an issue that was 
important but that did not need to be included in a uniform law. 
Rather, out of regard for the gravity of the issue, the Drafting 
Committees determined that it was enough to flag the issue for 
states to consider at a more local level, and to provide model 
language that may be helpful to states wishing to pursue the 
issue. 
If this Section is adopted, 
the state should also chose the 
bracketed option with this Section in Section (d), so that a 
mediator who is not impartial is precluded from asserting the 
privilege. Section (e) makes this inapplicable to an individual 
acting as a judge, whose impartiality is governed by judicial 
cannons. 
§lOOlO. 
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. 
REPORTER'S BOrES 
The fairness of mediation is premised upon the informed consent 
of the parties to any agreement reached. See Wright v. Brockett, 
Misc.2d 1031 (1991) (setting aside mediation agreement where 
conduct 
of 
landlord/tenant 
mediation 
made 
informed 
consent 
unlikely); 
see 
generally, 
Joseph 
B. 
Stulberg, 
Fairness 
and 
Mediation, 13 Ohio St. J. on Disp. Resol. 909, 936-944 (1998); 
Craig A. McEwen, Nancy H. Rogers, Richard J. Maiman, Bring in the 
Lawyers: Challenging the Dominant Approaches to Ensuring Fairness 
in Divorce Mediation, 79 Minn. L. Rev. 1317 (1995). Some statutes 
permit the mediator to exclude lawyers from mediation, resting 
fairness guarantees on the lawyer's later review of the draft 
settlement agreement. 
See, e.g., Cal. 
Fam. 
Code Section 3182 
(West 
1993); 
McEwen, 
et al., 
Minn. 
L. 
Rev., 
supra, 
at 
1345-1346. At least one bar authority has expressed doubts about 
the ability of a lawyer to review an agreement effectively when 
that 
lawyer 
did not participate 
in 
the 
give 
and 
take 
of 
negotiation. 
Boston 
Bar 
Ass'n, 
Op. 
78-1 
(1979). 
Similarly, 
concern has been raised that the right to bring counsel might be 
a requirement of constitutional due process in mediation programs 
operated by courts or administrative agencies. Richard C. Reuben, 
Constitutional Gravity: A Unitary Theory of Alternative Dispute 
Resolution and Public Civil Justice, 47 UCLA L. Rev. 949, 1095 
(April 2000). 
Some parties may prefer not to bring counsel. However, because of 
the capacity of attorneys to help mitigate power imbalances, and 
in the absence of other procedural protections for less powerful 
parties, the Drafting Committees elected to let the parties, not 
the mediator, decide. Also, their agreement to exclude counsel 
I 
should be made after the dispute arises, so that they can weigh 
the importance in the context of the stakes involved. 
The Act does not preclude the possibility of parties bringing 
mul tiple 
lawyers 
or 
translators, 
as 
often 
is 
common 
in 
international commercial and other complex mediations. The Act 
also makes clear that parties may be accompanied by a designated 
person, and does not require that person to be a lawyer. This 
provision is consistent with good practices that permit the pro 
se party to bring someone for support who is not a lawyer if the 
party cannot afford a lawyer. 
Most statutes are either silent on whether the parties' lawyers 
can be excluded or, alternatively, provide that the parties can 
bring lawyers to the sessions. See, e.g., Neb. Rev. Stat. Section 
42-810 
(1997) 
(domestic 
relations) 
(counsel 
may 
attend 
mediation); N.D. Cent. Code Section 14-09.1-05 (1987) (domestic 
relations) (mediator may not exclude counsel); Okla. Stat. tit. 
12, Section 1824(5) (1998) (representative authorized to attend); 
Or. Rev. Stat. Section 107.600(1) (1981) (marriage dissolution) 
(attorney may not be excluded); Or. Rev. Stat. Section 107.785 
(1995) 
(marriage dissolution) 
(attorney may not be excluded); 
Wis. Stat. Section 655.58(5) 
(1990) 
(health care) 
(authorizes 
counsel to attend mediation). Several States, in contrast, have 
enacted 
statutes 
permitting 
the 
exclusion 
of 
counsel 
from 
domestic mediation. See Cal. Fam. Code Section 3182 (West 1993); 
Mont. 
Code 
Ann. 
Section 
40-4-302(3) 
(1997) 
(family); 
S.D. 
Codified Laws Section 25-4-59 (1996) (family); Wis. Stat. Section 
767.11(10) (a) (1993) (family). 
As a practical matter, this provision has application only when 
the parties are compelled to participate in the mediation by 
contract, 
law, 
or order 
from 
a 
court or 
agency. 
In other 
instances, any party or mediator unhappy with the decision of a 
party to be accompanied by an individual can simply leave the 
mediation. 
In some instances, 
a 
party may 
seek to bring an 
individual 
whose 
presence 
will 
interfere 
with 
effective 
discussion. In divorce mediation, for example, a new friend of 
one of the parties may spark new arguments. In these instances, 
the mediator can make that observation to the parties and, if the 
mediation flounders because of the presence of the nonparty, the 
parties 
or 
the 
mediator 
can 
terminate 
the 
mediation. 
The 
pre-mediation waiver 
of this 
right of 
accompaniment 
can 
be 
rescinded, 
because 
the 
party 
may 
not 
have 
understood 
the 
implication at that point in the process. However, this provision 
can be waived once the mediation begins. Limitations on counsel 
in small claims proceedings may be interpreted to apply to the 
small claims mandatory mediation program. If so, the States may 
wish to consider whether to provide an exception for mediation 
conducted within these programs. 
The 
right to 
accompaniment 
does 
not operate to 
excuse 
any 
participation requirements for the parties themselves. 
§1001l. 
Relation to electronic signatures in global and national 
commerce act 
This chapter modifies, 
limits or supersedes the federal 
Electronic Signatures in Global and National Commerce Act. 
United States Code Section 7001 et seg., but this chapter does 
not modify, limit or supersede Section 101(c) of that Act or 
authorize electronic delivery of any of the notices described in 
Section 103(b) of that Act. 
REPORTER' S NOTES 
This Section adopts 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. 
The effect of this provision is to reaffirm state authority over 
matters of contract by making clear that UETA is the controlling 
law if there is a conflict between this Act and the federal 
E-sign 
law, 
except for E-sign's 
consumer 
consent provisions 
(Section lOl(c) and its notice provisions (Section 103(b) (which 
have no substantive impact on this Act). Among other things, such 
clarification assures that agreements related to mediation -
such 
as 
the 
agreement 
to 
mediate 
and 
the 
subsequently mediated 
settlement agreement -
may not be challenged on the basis of a 
conflict between this Act 
and the federal E-sign law. 
Such 
challenges should be dismissed summarily by the courts. 
§l0012. Uniformity of application and construction 
I 
In 
applying 
and 
construing this 
chapter, 
consideration 
should be given to the need to promote uniformity of the law with 
respect to its subject matter among states that enact it. 
REPORTER· S BOrES 
One of the goals of the Uniform Mediation Act is to simplify the 
law regarding mediation. Another is to make the law uniform among 
the States. In most instances, the Act will render unnecessary 
the other hundreds of different privilege statutes among the 
States, and these can be repealed. In fact, to do otherwise would 
interfere with the uniformity of the law. 
However, the Drafters contemplate the Act as a floor in many 
aspects, 
rather than a 
ceiling, one that provides a 
uniform 
starting point for mediation but which respects the diversity in 
contexts, cultures, and community traditions by permitting states 
to retain specific features that have been tried and that work 
well in that state, but which need not necessarily be uniform. 
For example, as noted after Section 4, those States that provide 
specially that mediators cannot testify and impose damages from 
wrongful subpoena may elect to retain such provisions. Similarly, 
as discussed in the comments to Section 8, States with court 
rules that have confidentiality provisions barring the disclosure 
of mediation communications outside the context of proceedings 
may 
wish 
to 
retain 
those 
provisions 
because 
they 
are 
not 
inconsistent with the Act. 
As discussed in the preface, point 5, the constructive role of 
certain laws regarding mediation can be performed effectively 
only if the 
prov~s~ons are 
uniform across 
the States. 
See 
generally James J. Brudney, Mediation and Some Lessons from the 
Uniform State Law Experience, 13 Ohio St. J. on Disp. Resol. 795 
(1998). In this regard, the law may serve to provide not only 
uniformity of treatment of mediation in certain legal contexts, 
but can serve to help define what reasonable expectations may be 
with 
regard 
to 
mediation. 
The 
certainty 
that 
flows 
from 
uniformity of interpretation can serve to promote local, state, 
and national interests in the expansive use of mediation as an 
important means of dispute resolution. 
While the Drafters recognize that some such variations of the 
mediation 
law 
are 
inevitable 
given 
the 
diverse 
nature 
of 
mediation, the specific benefits of uniformity should also be 
emphasized. As discussed in the Prefatory Notes, uniform adoption 
of the UMA will make the law of mediation more accessible and 
certain in these key areas. Practitioners and participants will 
know where to find the law, and they and courts can reasonably 
anticipate 
how 
the. 
statute 
will 
be 
interpreted. 
Moreover, 
uniformity 
of 
the 
law will 
provide 
greater 
protection 
of 
mediation than anyone state has the capacity to provide. 
No 
matter 
how much protection one state affords confidentiality 
protection, for example, the communication will not be protected 
against compelled disclosure in another state if that state does 
not have the same level of protection. Finally, uniformity has 
the capacity to simplify and clarify the 
law, 
and this is 
particularly true with 
respect to mediation confidentiality. 
Where 
many 
states 
have 
several 
different 
confidentiality 
provisions, most of them could be replaced with an integrated 
Uniform Mediation Act. Similarly, to the extent that there may be 
confusion between states over which state's law would apply to a 
mediation with an interstate character, uniformity simplifies the 
task of those involved in the mediation by requiring them to look 
at only one law rather than the laws of all affected states. 
§10013. Effective date 
This chapter takes effect January I, 2004. 
REPORTER· S NOTES 
The 
Uniform Mediation 
Act 
was drafted such that it can be 
integrated into the fabric of most state legal regimes with 
minimal disruption of current law or practices. In particular, it 
is not the intent of the UMA to disrupt existing law in those few 
states that have well-established mediation processes by statute, 
court rules, 
or court decisions. 
For example, 
its privilege 
structure, 
exceptions, etc., is consistent with most of the 
hundreds of privilege statutes currently in the states. 
Many of these can simply be repealed, and this Section provides 
the vehicle for so doing. However, states should take care not to 
repeal additional provisions that may be embedded within their 
state laws that may be desirable and which are not inconsistent 
with the provisions of the Act. An Act is still uniform if it 
provides for mediator incompetency or provides for costs and 
attorneys fees to mediators who are wrongfully subpoenaed. For 
example, in Ohio the Act would seem to replace the need for the 
generic privilege statute, O.R.C. 2317.023, and that part of the 
domestic mediation statute O.R.C. 3109.052 relating to privilege, 
but not the public records exception, O.R.C. 149.43 or failure to 
report a crime, O.R.C. 3109.052. 
In contrast, Alabama has fewer statutes that would be subsumed by 
the Act. For example, the Act would seem to replace the need for 
the 
confidentiality 
provision 
in 
Ala. 
Code 
24-4-12 
(communications 
during 
conciliation 
sessions 
of 
complaints 
brought under Fair Housing Law are confidential unless parties 
waive in writing). The Act would 'also subsume certain sections of 
Ala .. Code 6-6-20, such as the definition of mediation and the 
provision permitting attorneys or support persons to accompany 
parties, but would not replace the provisions authorizing courts 
to refer cases to mediation under certain conditions and defining 
sanctions. 
Many of the existing statutes deal with matters not covered by 
the Act and need not be repealed in order to provide uniformity 
because they would not be superceded by the Act. Common examples 
include 
authorization 
of 
mandatory 
mediation, 
standards 
for 
mediators, and funding for mediation programs. Similarly, the Act 
would not supercede statutes relating to mediator qualifications, 
such as O.R.C. 3109.052(A)(permitting local courts to establish. 
mediator qualifications) and O.R.C. 4117.02(E)(authorizing state 
employment relations board to appoint mediators according to 
training, practical experience, 
education, 
and character). 
In 
such situations, an abundance of caution may counsel in favor of 
noting specifically in this Section which provisions of current 
state laws are not being repealed, as well as which ones are 
being repealed. 
On the other hand, in those relatively few instances where the 
Act directly conflicts, or may directly conflict, with existing 
state law, states will want to consider the relationship between 
their current law and the Act. 
The most prominent examples 
include those states that have provisions barring attorneys from 
attending and participating in mediation sessions, 
and those 
states that current permit or require mediators to make reports 
to judges who may make rulings on the case. 
§10014. 
App1ication to existing agreements or referra1s 
1. 
Hew referra1s or agreements. 
This chapter governs a 
mediation pursuant to a referral or an agreement to mediate made 
on or after January 1. 2004. 
2. 
A11 agreements. 
On or after July 1, 2004, this chapter 
governs an agreement to mediate whenever made. 
SUMMARY 
This bill enacts 
the 
Uniform 
Mediation 
Act, 
effective 
January 1, 2004. 
Detailed explanations are included in the Prefatory Note and 
the Reporter's Notes for each section.