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November 2004The Top 10 Reasons for Adopting the New Uniform Mediation Act in Washingtonby Alan Kirtley The Genesis of the Uniform Mediation Act Over the last 30 years the use of mediation has become prevalent in Washington and elsewhere. In many contexts, mediation has proven to be a faster, less expensive, less adversarial, and more confidential means of resolving disputes than the courts. Confidentiality is integral to successful mediation. It allows parties to engage in candid negotiations without fear that their words will be repeated later in court. Jurisdictions around the country have enacted mediation-privilege statutes to legally ensure confidentiality, thus promoting and supporting mediation. Washington's first mediation privilege was adopted for mediations conducted by community dispute resolution centers (DRCs)1 in 1984. Then, in 1989, confidentiality for divorce mediations was added.2 Finally, an all-purpose statute ("general statute") was drafted by the WSBA's ADR Section and became law in 1991.3 In Washington and elsewhere, these efforts produced an array of statutes, some with provisions that were inadequate, ambiguous, or conflicting.4 The need for a uniform, state-of-the-art mediation privilege became increasingly apparent as the field of mediation matured. In 1997, a blue-ribbon committee was formed to draft such a provision. Members were drawn from the National Conference of Commissioners for Uniform State Laws (NCCUSL) (which gave us the UCC and many other uniform acts) and from the American Bar Association's Dispute Resolution Section. The committee invited representatives from a broad base of mediation organizations, bar associations, government offices, and the academy of legal scholars who are expert in mediation-privilege issues to attend drafting meetings and comment on drafts. In 2001, after four years of work, the Uniform Mediation Act (UMA)5 emerged from the committee, and was endorsed that same year by NCCUSL (later amended in 2003) and by the ABA in 2002. Nebraska and Illinois have adopted the UMA, and the model statute has been introduced in seven other state legislatures.6 In Washington, a committee formed by the WSBA's ADR Section has studied the UMA, gathered comments from diverse constituencies, and in August 2004 issued a report recommending that the UMA, with appropriate changes, be made law in Washington.7 It is likely the UMA will be considered by our Legislature as soon as the 2005 session. Here are what I see as the top 10 reasons for adopting the new Uniform Mediation Act in Washington: 1. Establishes inter- and intra-state uniformity. The obvious first benefit of the UMA is its promise for the creation of a uniform, predictable mediation privilege for Washington and throughout the country. For those involved in disputes crossing state lines, the variation in the scope, content, and operation of state mediation-privilege statutes generates confusion and uncertainty. Under some circumstances it is virtually impossible to reliably assess, at the time of the mediation, which state privilege will apply if the case fails to settle; for example, a dispute arising from an Idaho construction project involving entities from Washington, California, New York, and Florida that is mediated in Chicago, or via conference call. Similar problems of prediction exist for parties entering contracts to mediate future disputes, and disputes mediated on the Internet. In each of these cases, a mediation party expecting confidentiality may find that the eventual forum state has no privilege statute, requires specific action (not done) or written language (not included) to trigger the privilege statute, or offers vastly more limited protection than elsewhere. By adopting the UMA, Washington contributes to the national effort to create a uniform mediation privilege for all the states. More importantly, the UMA will bring uniformity within Washington itself. Uncertainty of application remains a concern within Washington, due to the existence of multiple confidentiality provisions. For example, which statute will apply following an unsuccessful divorce mediation referred by a DRC to a lawyer/mediator whose form agreement to mediate references the general privilege statute — the divorce, DRC, or general-privilege statute? The answer is significant, as each of these statutes contains its own triggering mechanisms, scope, and holder status. A uniform privilege will add certainty and simplicity, and will end needless confusion in Washington law. Regardless of the type of case, all mediation participants and providers in Washington will look to a standard privilege. As the field expands, new statutes providing for mediation will need only to incorporate the uniform privilege by reference. In addition to the significant benefits of uniformity, the UMA will strengthen the substance of many facets of this state's mediation privilege. Reasons 2-10 below highlight the improvements the UMA will bring about. 2. Broadens the scope of the mediation privilege. Ideally, a privilege statute covers mediations in which confidentiality is intended by the participants, the mediation is conducted by a qualified mediator, and the privilege is justified as a matter of public policy. It is extremely difficult to craft a mediation privilege with the appropriate scope, since the process is used in such a wide variety of disputes: international conflict; commercial, personal injury, workplace, and family disputes; peace-making efforts in neighborhoods and at accident scenes; and even playground conflicts. The challenge for drafters is devising a privilege that is not over- or under-inclusive. The UMA strikes the correct balance by extending the privilege: • When parties are required to mediate by statute, court, administrative agency, or arbitrator; The scope of the current Washington statute is far narrower, extending only to mediations: Mandatory mediation is becoming more prevalent. The UMA will improve Washington law by protecting parties required to mediate not only by courts, but also by statute, administrative agencies, and arbitrators. These changes take into account the broader context in which mediation is now used. 3. Eliminates triggering pitfalls of the current statute. The more inclusive scope of the UMA will also eliminate a pitfall for those mediating in Washington who fail or choose not to sign an agreement to mediate. Washington's general-privilege statute is invoked by the parties signing an agreement to mediate in the vast majority of cases. However, if ill-informed parties fail to sign an agreement to mediate, their legitimate mediation communications will not be privileged. The UMA will protect communications, even if there is no written agreement, so long as the parties mediate with a recognized mediator.10 Related problems arise under current law with regard to pre-session communication. During this preliminary phase, the party and the mediator or her staff routinely converse, correspond, and record information that relates to the substance of the dispute to be mediated. Candor and confidentiality are as important for these communications as those occurring in a mediation session. However, the agreement to mediate is generally not signed until the first session. If a party decides against mediation before signing the agreement to mediate, there are serious questions in Washington as to whether pre-session communications are privileged. The broader scope of the UMA resolves this issue as well if the parties are using a recognized mediation provider.11 4. Clarifies the time frame for privileged activities. There often remains a question as to which portions of the mediation are protected even when parties successfully invoke the general privilege. The current Washington statute covers the "mediation proceeding."12 While the use of "mediation proceeding" may have been intended to protect communication during any phase of the mediation process, a court may interpret "proceeding" as narrowly as referring only to those communications occurring when the parties were actually in session. At issue are communications that occur while convening the mediation (inquiries regarding services, staff-intake interviews and pre-session individual caucuses with the mediator), between sessions, and after the last session when a mediator may be attempting to bring about, resurrect, or finalize a settlement. The UMA eliminates the present uncertainty by encompassing all communication "that occurs during a mediation or is made for the purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator."13 5. Extends to more subsequent proceedings. To promote candor, the mediation privilege, once invoked, must be operative in all types of subsequent adjudicatory proceedings. The Washington state general statute bars disclosure "in any judicial or administrative proceeding."14 In creating an inclusive privilege for all civil, criminal, and administrative proceedings, the Washington statute was forward thinking for the time. The UMA goes one step further with the addition of "arbitral" and "legislative hearing[s] or similar process[es]."15 Arbitrators are decision-makers and, as with judges, should not be permitted to consider previous mediation settlement discussions. The UMA also leaves no doubt that the mediation privilege extends to the subsequent proceeding's "related pre-hearing and post-hearing motions, conferences, and discovery."16 Subsequent proceedings in criminal cases were particularly controversial for the UMA drafting committee. Committee members were of two views. There were those who wanted the UMA's privilege to be an absolute bar in all criminal cases, as with current Washington law. Others believed that the interests of justice, particularly in felony cases, are too great to exclude mediation communications. The resulting compromise is a qualified privilege for criminal cases. Under the UMA, mediation communications may be admitted in a subsequent criminal case only if the following conditions are met: The proponent of the evidence, in an in-camera hearing, must convince the court that the evidence is not otherwise available, and that the need for the evidence "substantially outweighs the interest in protecting confidentiality."17 Our Legislature should reject optional language offered in the UMA to also admit mediation communications in misdemeanors. With the lower stakes in misdemeanor offenses, the public interest weighs on the side of promoting settlements through mediation over the need to access mediation communications. Moreover, in misdemeanor (and felony) cases, the courts under the UMA will already have access to threats or statements evidencing abuse made in mediation.18 6. Establishes a privilege for non-party participants. Whom should the mediation privilege protect? A variety of people may attend a mediation besides the individuals in dispute and the mediators: attorneys, consultants and experts, family members and other "support persons," interpreters, and mediation trainees and observers. Mediation sessions routinely open with the mediator urging all present to be candid, and assuring the confidentiality of their communications. In fact, Washington's and most other mediation privilege statutes protect only the disputing parties and the mediator. For others, participating in mediation can be risky business. Particularly at risk are professional non-party participants, such as architects, attorneys, real estate agents, financial advisors, and accountants attending as consultants. For example, in a mediation between a builder and property owner, what protection will be given to the owner's architect who casually states that "maybe we could have called for a little more steel there"? Under existing Washington law, the architect would have no power to block her admission in the subsequent litigation, because she was neither a mediation party nor the mediator. The UMA drafting committee was urged to rectify this problem to ensure the availability of professional assistance to parties in mediation. The committee did so by granting a limited privilege to non-party participants.19 The non-party participant may only block testimony regarding his or her mediation communications in any later litigation.20 By adopting the UMA, the standard mediator assurance of confidentiality for all participants present will actually be supported by the law. 7. Creates an exception for fraud and duress. Mediation communications should be readily available to prove or disprove allegations that a mediation agreement was reached by fraud or duress. Yet the Washington statute and those in most states contain no such exception. Two factors may explain the absence. First is the fear that parties experiencing "settler's remorse" may use a fraud exception coupled with the threat of litigation as a "loophole" to upset valid settlements. The second is the belief that courts will somehow manage to sort out valid claims and find a way in which to override the privilege. The UMA addresses fraud in the same manner as privilege in criminal cases. A qualified privilege is created for proceedings to rescind, reform, or avoid a mediation agreement. To use mediation communications to challenge or defend a settlement, the proponent has the same burden as for offering evidence in a felony. He must show that the evidence is otherwise not available and that the need for the evidence "substantially outweighs the interest in protecting confidentiality."21 This approach improves Washington law by creating an explicit exception for fraud and duress while maintaining sufficient restrictions. 8. Permits evidence of professional misconduct and malpractice. It is also possible that the mediator, or a lawyer, CPA, or other professional, may commit misconduct or malpractice during a mediation. Without an exception to the privilege, reporting, proving, or disproving misconduct or malpractice is problematic, if not impossible. The Washington statute addresses these concerns in part with an exception for offering evidence in a "subsequent action between the mediator and a party … arising out of the mediation."22 This exception allows for malpractice actions against a mediator, but does not include other professionals. Current law, however, does not explicitly permit the reporting of misconduct by a mediator or other professional to regulating authorities. In contrast, the UMA will free up mediation communications "to prove or disprove a claim or complaint of professional misconduct or malpractice .23 This exception properly opens up the mediation process for the scrutiny of the courts, disciplinary bodies, and the public when such charges are made. The provision will also serve to encourage all professionals who participate in mediation to do so with skill and integrity. 9. Limits mediator reporting to the court. Both the Washington general statute and the UMA are designed to protect the mediator from the role of tie-breaking witness in subsequent proceedings. When a mediator is forced to testify, inevitably one or both parties assumes loss of neutrality. Should this become the norm, future/potential parties will be reluctant to be candid or dismiss mediation entirely as a viable option. Similar concerns arise when a court questions a mediator (often ex parte) about a mediation in progress, or when the court requires a mediator to provide a post-mediation report. Mediators can be asked to assess the level of the parties' "good faith" participation, evaluate the merits of the case, and/or make recommendations to the court. Such inquiries place the mediator in the difficult position of deciding whether to honor the mediation privilege or submit to the court's directive. Courts, however, do have a legitimate need for basic information from the mediator, in order to monitor party compliance with court-ordered mediation. Without the risk of sanctions, litigants and their lawyers may be tempted to treat court-mandated mediation cavalierly. The UMA strikes a correct balance by allowing mediators to report to courts only whether the mediation occurred, who attended, whether the parties reached settlement, and any non-privileged communications.24 With the addition of this provision, the courts are then able to enforce their orders to mediate while the privilege for all other mediation communications remains intact. 10. Tackles public disclosure issues. The growth of mediation has not been limited to private disputes. Public entities have also experienced the expediency of mediation. They, too, benefit from a positive, cost-effective alternative for resolving their disputes. Governmental bodies, like many businesses, are creating in-house mediation programs to resolve disputes arising in the workplace. When a public entity participates in or sponsors a mediation program, the policies supporting a mediation privilege clash with those favoring open public meetings and records. The Washington statute and those of nearly all states ignore this difficult issue entirely. This response is no longer workable with the rise of government participation in mediation. The UMA properly provides no privilege protection when a mediation session is open, or required to be open, to the public.25 The UMA, however, mistakenly subjects mediation communications to open-records laws. Under the present Washington law, government-based mediation programs and DRCs face uncertainty and concern as to whether their case files may be subject to disclosure requests. Without the protection of confidentiality, public employees may no longer participate in mediation, causing innovative public programs to die on the vine. Our Legislature must depart from the UMA and instead follow the lead of the federal Alternative Dispute Resolution Act exempting mediation communications from Freedom of Information Act requests.26 Conclusion These top 10 reasons provide ample support for adopting the UMA in Washington. The UMA will consolidate this state's several differing confidentiality provisions into a single, uniform mediation privilege and, in addition, markedly improve the substance of the Washington mediation privilege. Passage will also contribute to the national effort to create a uniform mediation privilege for all the states. ______________________________ Alan Kirtley is associate professor and director of clinics at the University of Washington School of Law. He is a past chair of the WSBA ADR Section, and contributed to the drafting of both the current Washington mediation-privilege statute and the UMA. NOTES |
