Last year Connecticut saw a major breakthrough in codification of law related to alternative dispute resolution with the passage of the Revised Uniform Arbitration Act. Connecticut was the 20th state to enact the RUAA (followed by Kansas and Pennsylvania), after six attempts and some 18 years after it was promulgated by the National Uniform Law Commission.
Now a new opportunity to further strengthen ADR law presents itself in the form of the Uniform Mediation Act.
Like the RUAA, the UMA was promulgated by the ULC (formerly the National Conference of Commissioners on Uniform State Laws), a highly respected organization well-known for enactments such as the Uniform Commercial Code. Serving the ULC are extremely dedicated and respected volunteer commissioners from each state, supported by a very knowledgeable staff who are wise to the world of drafting legislation.
In drafting the UMA, the ULC collaborated with the American Bar Association’s Section of Dispute Resolution, and the act was completed in 2001. The drafters were a unique blend of extremely qualified scholars and practitioners. The Mediation Act was widely distributed and vetted, receiving positive comments from mediation experts throughout the country, as well as from many distinguished organizations.
The act was drafted against the backdrop of growing mediation use in both private and court-annexed settings, coupled with more than 2,500 separate state and federal enactments touching on various aspects of mediation.
At the center of the UMA are the principles of confidentiality and uniformity in the mediation process, which are developed within the realities of the current civil justice system.
The prefatory statement to the draft Mediation Act declared three major purposes:
- Promoting the candor of parties through confidentiality and establishing guidelines for that confidentiality.
- Encouraging the use of mediation by establishing the integrity of the mediation process, active party involvement and self-determination.
- Advancing the policy that decision-making authority rests with the parties.
The drafters realized the act would be applied in a number of diverse settings, many of which did not involve lawyers. Thus, some provisions which would be determined by program-specific determinations were not included. Just one example is mediator qualification.
Recognizing the wide variety of local customs, practices and precedents already in existence, the drafters used what the prefatory note called a “floor rather than ceiling for some protections.” They did not intend to pre-empt local rules consistent with the act.
The UMA is intended to apply to most private or court-annexed mediations, but not to mediations involving labor matters. Similarly, certain judicial conferences and peer mediations are excluded from the scope of the act.
The act makes it clear that both parties and the mediator hold a mediation privilege. It further defines the parties’ right to be accompanied at the mediation process as well as requirements for mediator disclosure of conflict and—when requested—qualifications, although the act does not set a standard for mediator qualification.
While the drafters considered the act to be “ripe” for enactment in 2001, only some 12 states have enacted it to date.
One can persuasively argue, however, that the Mediation Act is more ripe for enactment today than it was in 2001 because of the unprecedented current use of mediation and the continued necessity to clarify the issues. Moreover, specific state enactments keep coming. A recent example is a new California law requiring attorneys participating in a mediation to provide the client with a written disclosure as to the mediation confidentiality requirements and to have the client acknowledge it in writing.
The UMA continues to attract interest throughout the country. This year a bill for its enactment has been introduced in Massachusetts.
With so much going on in mediation, it seems an appropriate time to dust off the Uniform Mediation Act and re-examine its benefits. As the ULC points out, there are numerous reasons to adopt the act: certainty and uniformity in mediation, a clear confidentiality privilege with important exceptions, and protection for mediation participants. The act has much merit.
On the heels of the enactment of the Revised Uniform Arbitration Act in our state, the timing may be opportune for consideration of the Uniform Mediation Act.
After all, nothing succeeds like success.
Harry N. Mazadoorian is a commercial arbitrator, mediator and member of the American Arbitration Association’s Master Mediator Panel. He is the distinguished senior fellow in the Center for Dispute Resolution at Quinnipiac University School of Law.