The Uniform Mediation Act
The New York State Dispute Resolution Association (NYSDRA) Conditionally Supports the Uniform Mediation Act(UMA)
In 2001, the National Conference of Commissioners on Uniform Laws promulgated the Uniform Mediation Act (“UMA” or “the Act”). The New York State Dispute Resolution Association, after careful review and a survey of its membership, conditionally supports the UMA. Although NYSDRA strongly supports the UMA’s goals of promoting uniformity and protecting the integrity of mediation, it cannot unconditionally support the Act in its present form without certain modifications. Initially, the UMA should be redrafted to provide for a true confidentiality to the mediation process. Secondly, the purpose of the UMA should be expressly limited to providing a uniform law on confidentiality, and its title should be amended to reflect this limited purpose. Finally, key definitions in the UMA should be modified to accurately comport with the practice of mediation.
I. Support for the Fundamental Principles of the UMA
It is obvious that the National Conference of Commissioners on Uniform State Laws put a great deal of effort and thought behind the UMA. It is an effort which is greatly appreciated and respected. The drafters of the UMA developed important core principles which NYSDRA strongly supports.
For example, among other things the UMA was designed to “promote candor of parties through confidentiality of the mediation process …[as well as to] encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process...” [1]. NYSDRA concurs that the mediation community should support the passage of proposed legislation designed to accomplish these purposes, and further believes that uniformity in this regard is desirable.
However, NYDRA cannot at this time wholly support the form of the UMA. For the reasons stated below, NYSDRA believes that the UMA’s use of a hybrid evidentiary privilege, rather than a true process confidentiality, will create an uncertainty that will defeat the very core principles which NYSDRA supports.
II.The UMA Should Be Redrafted to Provide for a True Confidentiality to the Mediation Process Rather than a “Professional Privilege”
After considering several other approaches, the drafters of the UMA “ultimately settled on the use of the privilege structure, the primary means by which communications are protected at law. . ..” [2] In essence, a privilege precludes the disclosure of certain types of confidential communications between persons in a special relationship (e.g. attorney/client; doctor/patient).
In the first instance, unlike the practices of law and medicine, the practice of mediation has not yet been statutorily recognized as a “profession” in New York State (see, Education Law, Title VIII, Sections 6500 et seq.). It has been NYSDRA’s experience that this may present a stumbling block to passage of the UMA in New York, as many legislators would be unwilling to grant a “professional privilege” to a discipline that has yet to develop uniform licensing requirements, ethics and standards. [3]
Moreover, traditionally exclusionary privileges are narrower in scope than the broader concept of confidentiality. [4] In this regard, privileges have historically protected a limited category of communications, e.g. communications involving legal advice to invoke the attorney/client privilege. [5] In addition, privileges have been viewed as belonging to the client and thus subject to unilateral waiver by the client, [6] either expressly or impliedly.
Although certain organizations support the UMA for using the “familiar form” of an evidentiary privilege[7] , the drafters of the UMA recognized that “the privilege is unfamiliar to many using mediation”. [8] This is because one hallmarks of mediation has long been the broader concept of confidentiality to the process itself. For example, New York’s Judiciary Law article 21-A, which establishes Community Dispute Resolution Associations, provides that “[a]ny communication relating to the subject matter of the resolution made during the resolution process by any participant, mediator, or other person present at the dispute resolution shall be a confidential communication”. [9]
“Confidential communications are, by their very nature, guided by rules of exclusion” [10] , and the statutory confidentiality provisions governing CDRCs cannot be waived. [11]
Perhaps in recognition of the broader confidentiality rules which have traditionally guided the mediation process, the UMA attempts to create a broader hybrid “privilege” by, for example, extending the traditional scope of privilege to include mediators and nonparty participants as holders[12] ; defining “mediation communication” to include statements outside the mediation itself; [13] and requiring all waivers to be express. [14] NYSDRA believes that this unusual form of privilege will engender unnecessary and unpredictable litigation as the courts interpret the Act’s provisions. It will also interject an uncertainty into the mediation process which will defeat the very purposes of the Act.
For example, while a mediation party may prevent disclosure of any mediation communication, [15] mediators and nonparty participants may prevent only their own mediation communications from being disclosed. [16] Given the extended definition of “mediation communication”, it may ultimately be difficult to discern to whom a mediation communication “belongs”. Moreover, the differing scope of protection may lead to a manipulation of the manner in which communications are made within the mediation process, defeating the Act’s purposes of candor and amicability.
Accordingly, NYSDRA agrees with the Association for Conflict Resolution that the UMA should be redrafted to provide for a true confidentiality to the mediation process itself. [17] Such an approach would permit ample opportunity to create adequate safeguards in the form of exceptions to confidentiality, while safeguarding the integrity of the mediation process. [18]
Finally, using the familiar concept of confidentiality would simplify the Act and make it more understandable. [19] In attempting to make its hybrid form of privilege functional, the UMA deploys an elaborate scheme of exceptions, waivers and preclusions[20] which may lead to divergent judicial interpretations, creating years of litigation before any uniform approach is developed. In New York State, the concept of statutory confidentiality has had a longstanding precedent in Judiciary Law article 21-A. [21] NYSDRA believes that, while this precedent may certainly be built upon and improved, it should not be wholly discarded in favor of an untested hybrid form of evidentiary privilege.
III. The Title and Stated Purpose of the UMA Should Be Expressly Limited
The title “Uniform Mediation Act” is, in itself, misleading. The primary purpose of the UMA is to create a uniform confidentiality to the profession of mediation. There are numerous aspects of the profession, however, which are not specifically addressed by the UMA, including mediator qualifications; ethics and standards; and mediation “hallmarks” such as neutrality and self-determination. Accordingly, the UMA is not truly a comprehensive “Uniform Mediation Act” as the title implies. It should be re-named, e.g., the “Uniform Mediation Confidentiality Act” to avoid misperception.
This is not simply linguistics. The development of mediation has varied widely from state to state. While there may be a point in the future that a “Uniform Mediation Act” is conceivable, that time has not yet arrived. As a New York based organization committed to development of peaceful resolution processes, NYSDRA believes that the practice of mediation should first be allowed to fully develop in this state, as well as others, before presuming that there can be nationwide uniformity of all the material aspects of mediation. The title “Uniform Mediation Act” should be reserved for that time.
IV. Key Definitions of the UMA Should Be Modified to Accurately Comport with the Practice of Mediation
NYSDRA agrees with the New York State Bar Association’s Committee on Alternative Dispute Resolution that certain definitions in the UMA warrant revision. [22] Specifically, the use of the term “facilitates” in the definition of “mediation” will cause varying opinions as to whether the UMA applies to forms of mediation other than facilitative mediation, e.g. transformative, directive and evaluative. This definition should be redrafted to assure clarity as to the forms of mediation covered within the Act’s purview.
If the UMA is revised to provide for true confidentiality to the process rather than an evidentiary privilege, certain definitions may be unnecessary. For example, there would be no need to specifically define a “mediation communication”, which has been criticized as difficult to understand and overly broad. [23] Rather, the operative inquiry would be whether communications in issue took place within the mediation process. Similarly, it would be unnecessary to specifically distinguish between “nonparty participants” and “mediation parties”.
V. Conclusion
In short, the UMA uses a concept which is unfamiliar to the mediation community, i.e. an evidentiary privilege, in a hybrid form that is equally unfamiliar to courts and lawyer. Adoption of such a standard will cause legal uncertainty which will defeat the purposes of the UMA itself. This uncertainty would be obviated by utilizing a developed concept which is familiar to the mediation community, i.e. a true confidentiality to the mediation process. Incorporation of a confidentiality standard would simplify the UMA without compromising the integrity of the process.
Footnotes:
[1] UMA, Prefatory Note, p. 6.
[2] UMA, Section 4, Reporter’s Notes, p. 34.
[3] NYSDRA is committed to the development of statewide, uniform standards for mediators.
[4] See, e.g. Lightman v. Flaum, 97 NY2d 128, 135-136, cert denied 535 US 1096.
[5] See, e.g. Aetna Cas. And Sur. Co. v Underwriters at Lloyd’s London, 176 Misc.2d 605, 608, aff’d 263 AD2d 367, leave to appeal dismissed, 94 NY2d 875; ABB Kent-Taylor, Inc. v. Stallings and Co., Inc. 172 FRD 53.
[6] See, CPLR 4503(a); Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627.
[7] February 2002 Report of The Association of the Bar of the City of New York
[8] UMA, Section 4, Reporter’s Notes, p. 36.
[9] Judiciary Law s 849-b (6)[emphasis supplied].
[10] People v. Snyder, 129 Misc.2d 137, 139.
[11] Id. At 138-139.
[12] UMA s 4(b)
[13] UMA s 2(2).
[14] UMA s 5(a).
[15] UMA s 4(b)(1).
[16] UMA s 4(b)(2) & (3).
[17] > April 20, 2002 Resolution of the Association for Conflict Resolution.
[18] Exceptions to the confidentiality provisions of Judiciary Law s849-b(6) have already been fashioned (see, e.g. Ops Atty Gen 83-F17 [evidence of child abuse which is not the subject of the mediation or contained in the memoranda, work product or case files of mediator is not protected by confidentiality]).
[19] In its November 1, 2002 report, the New York State Bar Association’s Committee on Alternative Dispute Resolution found the UMA to be “confusing to read and difficult to understand” (p. 10).
[20] UMA ss 4& 5.
[21] Judiciary Law article 21-A was enacted in 1981.
[22] November 1, 2002 Report of the New York State Bar Association’s Committee on Alternative Dispute Resolution (NYSBA ADR Report), p. 19.
[23] NYSBA ADR Report, p.21.
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