Fall 2003 #10. Maine Considers the Uniform Mediation Act.

Author:by Michael Theodore Bigos

Maine Bar Journal


Fall 2003 #10.

Maine Considers the Uniform Mediation Act

Maine Bar JournalFall 2003Maine Considers the Uniform Mediation Actby Michael Theodore BigosState legislatures in all fifty states are considering whether to adopt the new Uniform Mediation Act,1 which was recommended by the National Conference of Commissioners on Uniform State Laws2 in August 2001 and the American Bar Association House of Delegates in February 2002. Weighing the objectives of uniformity, predictability and a principled response to new case law on mediation,3 policy makers and lawyers are scratching their heads to learn what the UMA does and whether there is a need for it.4 Perhaps for as many positives that the new act would offer, the expression, "if it ain't broke, don't fix it," represents the concerns of many who do not see the justification for its adoption at this time.

The UMA has been introduced in the Maine Legislature as LD 1295. It was referred to the Judiciary Committee, where testimony was given on the bill in early April 2003 by such stakeholders groups as mediators, members of the Maine State Bar Association and the Maine Trial Lawyers Association, state government administrators, the judiciary, and other interests. In mid-April, the Judiciary Committee carried the bill over to the 2004 legislative session, when it will be considered again. Regardless of its disposition at the end of the next session, Maine's legal community will have had a significant update on some of the country's most significant emerging mediation issues.

The legal framework of how mediation communications are treated after a mediation session would dramatically change under the Uniform Mediation Act - in legal proceedings, discovery, subsequent mediations, or in the outside world. Mediation is considered a private, consensual process for resolving disputes; thus, government interference into it is justifiably met with skepticism. Despite the hesitance of some, examining the UMA is a constructive exercise for all states to review their existing rules and statutes in order to bolster the effectiveness of mediation as a viable and important dispute resolution process for its citizens.5

The UMA was jointly drafted by the National Conference of Commissioners on Uniform State Laws and the Dispute Resolution Section of the ABA,6 thus subjecting it to an extraordinary degree of scrutiny and comment. According to the ABA, the act is "crafted as a minimum level of protection in those states that have none and is not meant to replace stronger confidentiality protections already on the books."7 The act is seen by some as a "significant contribution to the sound development of mediation" through its privilege provisions that protect confidentiality.8 Supporters of the Uniform Mediation Act also point to a variety of inconsistent state privilege statutes that should be simplified by nationwide adoption of the UMA.9 Furthermore, many states have internally inconsistent statutes that purport to accomplish similar goals.10

The purpose of the act, as summarized from its prefatory note, is to promote uniformity by encouraging "candor of the parties through confidentiality - subject only to the need for disclosure to accommodate specific and compelling societal interests. - " The purpose is also to foster prompt and economical resolution of disputes consistent with principles of self-determination, active party involvement and integrity of the mediation process.11

In addition to the efforts and philosophy of the drafters, scores of reported cases have influenced the need to reach agreement on the admissibility and weight that should be accorded to mediation communications.12 One of the most significant decisions, Olam v. Congress Mortgage Company,13 was decided during the drafting process and undoubtedly inspired one of the exceptions to the confidentiality privileges in the UMA. In 1999, Magistrate Judge Wayne Brazil14 of the California Federal District Court surprised the mediation community with Olam, which allowed the testimony of a mediator in contravention of a state statute that protected such testimony. Judge Brazil found that the testimony could be compelled because it was necessary to determine whether a defaulting party was competent to have entered into an enforceable mediation agreement.15 The judge reasoned that a weighing process was appropriate to determine whether the parties' interest in compelling the mediator's testimony outweighed the state's interest in preserving mediation confidentiality.16

The mediation community thought Olam would have a profound impact on mediation communications. On one hand, the test in Olam could create a slippery slope towards allowing in evidence of what a particular judge believes is liberally relevant. The statute that was in place to prevent the mediator's testimony was also displaced in Olam. Will parties be able to now rely on confidentiality statutes when presenting their case in future mediations? Another potential effect was that adoption of the rule in other jurisdictions could fundamentally change the integrity of mediation as an ADR process. Some regions might even see a decline in the use of voluntary mediation because of an unrestrained threat to confidentiality.

On the other hand, the test could be seen as fair to all parties involved, especially because the parties in Olam had consented. The court could have been sending a message that courts do not want parties "misusing" mediation to either cloak what would otherwise be admissible evidence by participating in a mediation, or to avoid complying with a mediated agreement because one would expect an enforcement action to go to court and not allow in evidence of any mediation communications. In either case, a party should not be able to make a false assertion and then hide the truth by invoking the confidentiality protections.

Olam ties into the Uniform Mediation Act in at least two ways. First, the balancing test is substantially replicated in Section 6(b), so that all adopting jurisdictions could admit party mediation communications under a similar balancing test for contractual misconduct, but not a mediator's testimony. Second, since mediation cases will continue to develop, states may wish to move toward a consistent, minimal set of standards in the form of a uniform act rather than follow the current trend of diverging variations.17 Currently, a jurisdiction like Maine would presumably examine its limited statutes and various rules to analyze an Olam-type problem, but would potentially draw on other jurisdictions' case law to develop a ruling. At any rate, all stakeholders agree that disclosure of mediation communications should be rare and occur only to accommodate narrow and compelling societal interests.

Before opponents of the UMA assemble the proverbial "parade of horrribles," ask yourself whether you disagreed with the result of Olam. Was there a better alternative, given the facts? Perhaps the key issue is how to develop a test that can achieve Olam-type results, but that contains sufficient restrictions on its use to ensure predictability. And in the absence of a more attractive version than § 6(b), perhaps trusting future case law developments under a uniform law system will be the best way to achieve the concurrent core values in promoting the use of mediation.

Maine guidelines for mediation communications

This section provides a brief overview of governing authorities in Maine on mediation communications, the most controversial subject of the UMA. First, M. R. Evid. 408 allows no evidence of "conduct or statements made in compromise negotiations or in mediation" to be admitted on any substantive issue in dispute; however, this implies that such evidence could be admissible on non-substantive issues. Also, no conduct or statements from court-sponsored domestic relations mediation are admissible for any purpose.

Next, consider M.R. Civ. P. 16B(k), which provides that for 16B ADR processes, neutrals shall not, without informed consent of the parties, disclose any outcomes (except for reporting to the court), conduct, statements, or other information from or relating to an ADR conference. Exceptions to this include: information concerning abuse or neglect of a "protected" person; if someone is presently committing or going to commit a crime or inflict imminent physical harm; or "as otherwise required by statute or court order."18

Maine Bar Rule 3.4(h) also guides such communications as follows: lawyers may be partial or biased mediators; lawyers must disclose interested relationships and parties must consent, unless "they are in mediation pursuant to a legal mandate." Lawyer mediators cannot "advance the interests of any of the parties at the expense of the other party." A lawyer may not represent any mediation parties in court while acting as a mediator or after mediation concludes or after withdrawal therefrom. And, regarding confidentiality, a lawyer "shall not use any conduct, discussions, or statements made by any party in the course of the mediation to the disadvantage of any party to the mediation" or, without informed consent, "to the advantage of the lawyer or a third person."

Finally, compare the Code of Conduct for Maine Judicial Branch ADR Neutrals. The Canons provide: (1) neutrals should maintain high...

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