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Van Winkle: Should Indiana adopt Uniform Mediation Act?

John R. Van Winkle
October 26, 2011
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The Uniform Mediation Act was adopted by the National Conference of Commissioners on Uniform State Laws and recommended for enactment by states in August of 2001. The UMA, initiated by the American Bar Association’s then newly formed Section of Dispute Resolution, has been adopted by 11 states and the District of Columbia. Indiana’s neighboring states of Illinois and Ohio have enacted the UMA, and the act has been introduced in 2011 in Massachusetts and New York. The touchstone of the UMA is a privilege to protect mediation confidentiality and, although Indiana’s ADR Rule 2 governing mediation provides for confidentiality and mentions privilege, it is not as clear, specific and broad as the UMA.

The core of the UMA: Is a mediation ‘privileged’?

vanwinkle-john-mug.jpg Van Winkle

The UMA was an unusual collaborative effort between drafting committees from the ABA’s Section of Dispute Resolution and the Uniform Law Commissioners. These committees decided that the most effective manner of promoting candor and confidence in the mediation process was to center the confidentiality concerns in the form of a privilege.

“The Drafters considered several other approaches to mediation confidentiality – including a categorical exclusion for mediation communication, the extension of evidentiary settlement discussion rules to mediation, and mediation incompetency.” – Official Comment 2 to Section 4 of the UMA.

In contrast, the Indiana rule simply states that mediations are to be considered as settlement negotiations and covered by the evidentiary exclusionary provisions of Rule of Evidence 408. (Ind ADR Rule 2.11) That rule also provides that any matter discussed during the mediation shall be considered “confidential and privileged in nature.” The Indiana rule somewhat mixes the concepts of confidentiality and privilege and does not define the scope of the “mediation.”

The UMA’s focus on privilege simplifies and strengthens the confidentiality of mediation by creating a privilege for mediators and participants that allows them to refuse to disclose a “mediation communication” in any discovery or evidentiary proceedings covered by the act. An important component of the act is the broadness of the definition of a “mediation communication.”

UMA extends privilege protection

One of the most important aspects of the UMA is that it extends privilege protection to any “statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, or participating in, initiating, continuing or reconvening a mediation or retaining a mediator.” (UMA, Section 2(2))

Many mediations of complex and multi-party disputes not only often extend over multiple sessions, they also commonly involve numerous pre-session conference calls and planning sessions, and the provisions of the UMA clearly extend privilege coverage to these activities. Although it can be argued that Indiana’s rule also so provides, it is not clearly stated.

The definition of “mediation communication” only extends to non-verbal conduct which is intended to be an assertion. The Indiana Court of Appeals, in Bridges v. Metromedia Steakhouse Company, 807 N.E2d 162, (Ind. App.2004), found similarly in holding that a witness could testify as to observations made during a mediation as to the condition of the plaintiff’s arm.

Although the Indiana court in Bridges reached the same conclusion that would have resulted under the UMA, its analysis was focused on Evidence Rule 408 with a reference to the “general rule that matters discussed in mediation are confidential and privileged,” again combining in the analysis both confidentiality under 408 and privilege but without a clear indication of how the privilege applies.

Waiver and preclusion of the privilege

The drafters of the UMA decided that to have an effective mediation privilege, there needed to be a “blocking function.” (Official Comment 4, Sect. 4(b)) Under Section 4, a party may not only refuse to disclose a mediation communication, he or she may also prevent any other party from disclosing such a communication. Mediators and non-party participants may also refuse to disclose mediation communications and may block others from doing so also. All mediators and parties must agree in a record or orally in a proceeding to waive the privilege and a waiver can not be made by “conduct.” (UMA, Section 4)

Conclusion

As indicated above, although Indiana’s mediation rule both specifically applies Evidence Rule 408 and states that matters in mediation are “confidential and privileged,” it does not specifically delineate the scope of mediation nor does it explain the interplay and relationship of the concepts of confidentiality under 408 and privilege.

The incorporation of all or parts of the UMA into the Indiana ADR Rule 2 covering mediation would bring clarity to the scope and extent of confidentiality in mediation and, by using the same privilege focus, would simplify any analysis.•

__________

John R. Van Winkle chaired the American Bar Association’s Section of Dispute Resolution and has been a full-time professional mediator and arbitrator since 1994. He is a founding member of Van Winkle Baten Dispute Resolution. The opinions expressed in this column are the author’s.
 

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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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