The Act Keeps Mediation Communications Out of Court Proceedings But Only Has Thirteen Adoptions in Twenty-Two Years.
Created in 2001, the Uniform Mediation Act has been adopted in the District of Columbia and twelve states: Georgia, Hawaii, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont, and Washington. Among these, however, only Georgia ranks in the top ten in population.
The core concern of the Act, jointly drafted by the Uniform Law Commission and the American Bar Association Dispute Resolution Section, is keeping settlement communications confidential.
For those who mediate in an adopting state, take a deep dive here. For the rest of us, a lightning round suffices:
Scope: The Act Applies to nearly all mediations except those involving collective bargaining, minors in a school peer review, prison inmates, and mediations conducted by judicial officers.
Central Rule: A mediation communication is confidential and not subject to discovery or admission into evidence in a formal proceeding unless all parties agree in writing or by oral statement made in the proceeding. There is no waiver by conduct.
Exceptions: The privilege extends only to mediation communications and not the underlying facts. Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its use in a mediation. Other exceptions are rare occurrences such as mediation communications made with criminal intent.
Mediator Obligations: Mediators, other than judicial officers, cannot report back to the presiding court anything other than a mediation is ongoing or completed and who participated. Mediators must disclose conflicts of interest to all parties before accepting a mediation, and they must disclose their qualifications to any requesting party.
Still need more? The Marquette Law Review dedicated Volume 85, Issue 1, to discussing the Act.
