An Act To Adopt Portions of the Uniform Mediation Act
Maine Legislature, Session 124, LD 1378
Committee: judiciary
Sponsors: WAGNER, BLISS, DILL, HASKELL, HAYES, WATSON

124th MAINE LEGISLATURE, 
FIRST REGULAR SESSIOr~-2009 
Legislative Document 
No. 1378 
RP.·968 
House of Representatives, April 2, .2009 
An Act To Adopt Portions of the Uniform Mediation Act 
Reference to the Committee on judiciary suggested and ordered printed. 
Presented by Representative WAGNER of Lewiston. 
Cosponsored by Senator BLISS of Cumberland and 
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MILLICENT M. MacFARLAND 
Clerk 
Representatives: DILL of Cape Elizabeth, HASKELL of Portland, HAYES of Buckfield, 
WATSON of Bath .. 
Primed (In recycled pnpcr 
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Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 14 MRS A Pt. 8 is enacted toread: 
PART 8 
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MEDIATION 
CHAPTER 801 
UNIFORM MEDIATION ACT 
§10001. Title 
This chapter may be known and cited as "the Uniform Mediation Act." 
§10002. Definitions 
. As used in this chapter, unless the context otherwise indicates, 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 communication. "Mediation comri1Unication" 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 m 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 
mediation party or mediator, that participates in a mediation. 
. 
6. Person. "Person" means an individual; corporation; business trust; estate; trust; 
partnership; 
limited 
liability company; 
association; 
lomt venture; 
government; 
governmental subdivision, agency or instrumentality; public corporation; or any other 
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legal or cominercial entity. 
7. Proceeding. "Proceeding" means: 
A. A judicial, administrative, arbitral or other adjudicative process, including related 
prehearing and posthearing motions, conferences and discovery; or 
. 
B. A legislative hearing or similar process. 
.. 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. 
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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. 
§10003. Scope 
1. Application. Except as otherwise provided in subsection 2 or 3, this chapter 
applies toa mediation in which: 
. 
A. The mediation parties 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 parties and the mediator agree to mediate in a record that 
demonstrates an expectation that mediation communications, will be privileged 
against disclosure; or 
. 
C. 
The mediation parties use as a mediator an individual who is held out as a 
mediator or the mediation is provided by a person that holds itself out as providing 
mediation. 
2. Exemptions. This chapter does not apply to a mediation: 
A. 
Relating to the establishment, negotiation, administration or termin'ation of a 
collective bargaining relationship; 
B. Relating 'to a. dispute that is pending under or is pali of the processes established 
by a collective bargaining agreement, except that this chapter applies to a inediation 
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 
Do' 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 paliies 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 parties, 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. 
§10004. Privilege against disclosure; admissibility; discovery 
1. Privileged unless waived or precluded. Bxcept 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. 
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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 disclosin'g a mediation communication of the mediator. 
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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; discovery. 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. 
§lO005. 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 Ii 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 ari ongoing crime 
or ongoing criminal activity is precluded from asserting a privilege under section 10004. 
§10006. 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 required by lawto be open, to the public; 
C. A threat or statement of a plan to inflict bodily injury or commit a crime of 
violence; 
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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. Eyidence not otherwise available. There is no privilege under section 10004 if a 
court, administrative agency or arbitrator finds, after a hearing iri camera, that the party 
seeking discovelY 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 thatthe mediation communication is sought or 
offered in: 
. 
A. A cOUli proceeding involving a murder or a Class A, B or C crime; or 
B. Except as otherwise provided in subsection 3, it 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 may 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 
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 
or 2 does not render the evidence, or any other mediation communication, discoverable 
or admissible for any other purpose. 
§10007. Prohibited mediator reports 
1. Prohibited communication 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 communication 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. 
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. 
§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. 
§10009. Uniformity of application and construction 
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. 
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§lOOlO. Application to existing agreements or referrals 
1. New referrals or agreements. This chapter governs a mediation pursuant to a 
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referral or an agreement to med iate made on or after January I, 2010. 
2. All agreements. On or after July 1, 2010, this chapter governs an agreement to 
. mediate whenever made. 
§10011. Effective date 
This chapter takes effect JanuaIY 1, 2010. 
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SUMMARY 
The purpose of this bilI is to encourage parties involved in mediation to communicate 
openly, and to protect the confidentiality of participants in the mediation process.· This 
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bill adopts those portions of the Uniform Mediation Act, as adopted by the National 
Conference of Commissioners on Uniform State Laws, that: 
1. 
Establish 
privileges for 
mediation 
communication 
regarding disclosure, 
admissibility and discovery; 
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2. Authorize exceptions and waivers to the established privileges; 
3. Specifically prohibit and permit various communications by a mediator; and 
4. Establish the confidentiality of mediation communications. 
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