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Since its introduction in the early 1990s, mediation has become a core component of the civil justice system and the most significant and widely used alternative dispute resolution method. The remarkable growth and widespread use of mediation, however, led to some problems.
For example, it is estimated that by the year 2000 over 2,500 separate state statutes or court rules affected the mediation process in some manner. The result was that mediating parties, particularly in multi-state contexts, could not be sure of what law, statute or rule would govern their participation.
This uncertainty was most pronounced in one of the most critical factors of participating in a mediation, the extent to which actions, communications and exchanges during the mediation process are confidential.
It was to address this uncertainty in the various ADR rules that the Uniform Mediation Act was enacted. The UMA, a collaboration between committees of the ABA’s Section of Dispute Resolution and the Uniform Law Commissioners, was adopted by the National Conference on Uniform State Laws and recommended for enactment by states in August of 2001.
The UMA has been adopted in 13 states including Indiana’s neighboring states of Illinois and Ohio.
The initial decision that the UMA Drafting Committee faced was whether to continue the general trend of the majority of states—including Indiana— and base its confidentiality protections on evidentiary settlement discussion rules, Evidence Rule 408.
The drafters decided otherwise. The Reporters stated in Comment 2 of Section 4 of the UMA: “The Drafters ultimately settled on the use of the privilege structure, the primary means by which communications are protected by law, an approach that is narrowly tailored to satisfy the legitimate interests and expectations of participants in mediation, the mediation process, and the larger system of justice in which it operates.”
This decision of the UMA Drafters to protect the confidentiality of mediation communication by creating a privilege instead of using an analysis based on 408 has proven to be the most consequential and important component of the UMA, reaching issues well beyond those presented by the thousands of potential applicable statutes and rules.
A review of the multitude of court decisions since the inception of mediation clearly highlights the problems confronted when courts analyze issues arising in a complex, evolving and dynamic process like mediation by simply declaring the entire process to be a settlement negotiation governed by Evidence Rule 408.
The “admitted for another purpose” exception of 408 alone has resulted in a myriad of conflicting results. The round peg of mediation communications simply won’t fit into the square hole of Rule 408. Hence, the importance of the privilege component of the UMA.
Privilege provisions of the UMA
Section 4 of the UMA provides generally that defined mediation communications are privileged and not subject to discovery or admissible in evidence in a legal proceeding. UMA Section 6 then provides that certain types of mediation communications are excluded from the broad privilege.
The types of communications not privileged include, among others, signed settlement agreements and statements offered to prove or dispute a claim of misconduct of a mediation participant.
Further, the drafters of the UMA understood that there would be instances where equities would suggest that evidence of what was done or said in a mediation should be allowed into evidence.
The policy and process rationales for the mediation confidentiality were so critical, however, that the drafters of the UMA wanted to ensure that such occasions were limited and that procedural safeguards were in place.
Accordingly, Section 6(B) of the UMA provides that no evidence of mediation communications should be excepted from the privilege until and unless an in-camera hearing is conducted, and the moving party demonstrates that the evidence is not otherwise available and that the need for the evidence substantially outweighs the interest in protecting the confidentiality.
It is submitted that the privilege approach of the UMA to the analysis of admissibility of evidence offers clear and concise guidelines and is superior to the “settlement discussion” and Evidence Rule 408 approach of the Indiana ADR Rule.
Out of court disclosures
While the UMA and the Indiana Rules differ in the approach to admissibility in court issues, the approach of both to out of court disclosures of mediation communications is similar in substantive result.
As indicated above, Indiana ADR Rule 2.11 in the section entitled “Confidentiality,” addressing out of court disclosures of communications, states simply that mediation sessions “shall be confidential” with no detail or guidance as to the limits, scope and application of the restriction.
The UMA addresses out of court disclosures of communications by specifically not addressing them. Section 8 of the UMA provides that “mediation communications are confidential to the extent agreed by the parties or provided by other law or rule” of the applicable jurisdiction.
The drafters of the UMA concluded that as to admissibility in court issues, specific rules of privilege regarding admissibility of evidence were appropriate, in part because parties need clarity and uniformity and also because they cannot by contract agree to keep evidence from the courts.
As to out of court disclosures of communications, however, a hands-off approach was adopted. The reporters stated in the comments to Section 8: “By contrast [to admissibility in court issues], uniformity is not necessary or even appropriate with regard to the disclosure of mediation communications outside of proceedings.”
It is submitted that may be appropriate for the various ADR and rules committees to revisit whether Indiana should adopt the UMA. As mediations continue to increase in number and variety, uniformity of applicable ADR rules is likely to become even more important.•
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John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.
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