The Uniform Mediation Act: Its Potential Impact on Colorado Mediation Practice-part I

• Jurisdiction: Colorado,United States
• Citation: Vol. 31 No. 5 Pg. 61
• Pages: 61
• Publication year: 2002

31 Colo.Law. 61 Colorado Lawyer 2002.

2002, May, Pg. 61. The Uniform Mediation Act: Its Potential Impact on Colorado Mediation Practice-Part I

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61

Vol. 31, No. 5, Pg. 61

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page 61]

Specialty Law Columns
Alternative Dispute Resolution Column
The Uniform Mediation Act: Its Potential Impact on Colorado Mediation Practice - Part I
by James F. Carr, Patrick F. Kenney, Cynthia A. Savage, Peter D. Willis

This column is sponsored by the CBA Alternative Dispute Resolution Committee. The articles printed here describe recent developments in the evolving field of ADR, with a particular focus on issues affecting Colorado attorneys and ADR providers

Column Editors

Jonathan Boonin of Warren & Boonin LLP, Boulder?(303) 413-1111, jboonin@warren-boonin. com; James L. Stone of JAMS Denver ?(303) 534-1254, jstone1672@aol.com

About TheAuthors:

(Left to Right): James F. Carr is Assistant Attorney General, Business and Licensing Section?(303) 866-5283; Patrick Kenney is a partner in Kenney & Kall Mediation Services, LLP, and CBA ADR Committee Chair?(303) 757-5000; Cynthia Savage is Director of the Office of Dispute Resolution?(303) 837-3667; Peter D. Willis is a partner in Kutak Rock LLP and chair of the Colorado Judicial Institute Board of Directors?(303) 297-2400

Part I of this article provides an overview of the UMA, CDRA, and the Model Standards, as well as an introduction to the underlying policies that govern all three. This article also announces the formation of a Task Force regarding the UMA. This is the first of a three-part series that calls for informed dialogue about the UMA and its potential effect on the status quo.

The recent promulgation of the Uniform Mediation Act1 ("UMA") signals the need for an in-depth analysis of its potential dramatic impact on existing law and mediation practice in Colorado, as well as in other jurisdictions where Colorado lawyers and mediators practice. The authors intend to provide such an analysis in a three-part series of articles published in this and in the next two issues of The Colorado Lawyer.

This Part I sets the stage for a complete examination of the UMA and a comparison of it with the Colorado Dispute Resolution Act2 ("CDRA") and the Colorado Model Standards of Conduct for Mediators3 ("Model Standards"), both of which strongly impact current Colorado mediation practice. This first article identifies those groups that may be affected by the UMA and introduces the broad policy concerns that underlie the CDRA, Model Standards, and UMA, including confidentiality, uniformity, and self-determination.

In the section below on the Model Standards, Part I also touches on the policy concerns underlying the conduct of mediators, including impartiality, neutrality, and the need for disclosure of conflicts of interest. A short history of the UMA, CDRA, and Model Standards follows. Finally, this first article announces the formation of the Colorado UMA Task Force, whose purpose is to seek consensus and perhaps recommend a course of action to the Colorado legislature with regard to adoption of the UMA.

Part II of this series will compare and contrast in detail the provisions of the UMA with those of the CDRA, including the scope of each Act. It also will discuss how the two Acts deal with and the exceptions to confidentiality and privilege, their treatment of nonparties, and the extent that each allows mediators to report on their mediations to courts and other authorities. Part III will discuss the provisions of the UMA compared with the provisions in the Model Standards, the Colorado Rules of Professional Conduct ("Colo.RPC"), and other standards that may be impacted by the UMA.

Stakeholders

Many identifiable groups in the legal community are likely to be interested in the rules governing mediation. For example, faced with ever-increasing use of mediation, litigators have a strong interest in preventing the admission of evidence of concessions or admissions intended to reach a settlement made by their clients in mediation. At the same time, litigators are interested in affording their clients the greatest possible opportunity to control the settlement of the matter, in keeping with Colo.RPC 1.2(a),4 and in affording the client the greatest opportunity to resolve disputes through alternative dispute resolution ("ADR"), as suggested by Colo.RPC 2.1.5

Transactional lawyers use mediation in furthering the goals of their clients to reach working solutions for complex business problems without...