The Draft Uniform Mediation Act in Context: Can it Clear Up the

Saint Louis University Law Journal Saint Louis University Law Journal

Volume 44

Number 3

(Summer 2000)

Article 25

7-20-2000

The Draft Uniform Mediation Act in Context: Can it Clear Up the The Draft Uniform Mediation Act in Context: Can it Clear Up the

Clutter? Clutter?

Bridget Genteman Hoy

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Bridget G. Hoy,

The Draft Uniform Mediation Act in Context: Can it Clear Up the Clutter?

, 44 St. Louis U.

L.J. (2000).

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THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT: CAN IT

CLEAR UP THE CLUTTER?

INTRODUCTION

A clear analogy exists between the state of today’s mediation regulation

and a typical attorney’s desk. An attorney’s desk is full of memos and filings,

projects and issues, all semi-sorted into piles, overlapping and spilling onto

other piles of questions and proposed answers. Unlabeled hanging file folders

of voluminous subjects, each only partially complete yet filled to capacity,

evidence incoherent attempts at organization. Likewise, the attempt at

regulating mediation among the states is unorganized, overlapping, incoherent,

and incomplete. What the proposed Draft Uniform Mediation Act

attempts to

do is sweep all the piles, folders, and files into the trash and replace them with

one brand new, unwrinkled, neatly filled file folder of mediation regulation.

In the Summer of 1999, the American Bar Association (“ABA”) and the

National Conference of Commissioners on Uniform State Laws (“NCCUSL”)

disseminated for review the first proposed Draft Uniform Mediation Act

(“Draft Act”).

“If enacted and adopted uniformly, [the Draft Act] would

This Comment, by Bridget Genteman Hoy, was selected as the Best Student Work to appear in

Volume 44 of the S

AINT LOUIS UNIVERSITY LAW JOURNAL.

1. U

NIFORM MEDIATION ACT (Draft Mar. 2000) (visited Mar. 20, 2000)

<http://www.law.upenn.edu/bll/ulc/mediat/med300nc.htm> [hereinafter Draft Mar. 2000]. The

first “integrated draft” was disseminated in June 1999. U

NIFORM MEDIATION ACT (Draft June

1999) (visited Feb. 21, 2000) <http://www.pon.harvard.edu/guests/uma/drafts/june99.htm>

[hereinafter Draft June 1999], reprinted in Richard C. Reuben & Nancy H. Rogers, Major Step

Forward, D

ISP. RESOL. MAG., Summer 1999, at 9. Substantial changes were made in the fall of

1999 resulting in the December 1999 and January 2000 versions. See U

NIFORM MEDIATION ACT

(Draft Dec. 1999) (visited Mar. 20, 2000) <http.//www.law.upenn.edu/bll/ulc/mediat/

/med1299.htm> [hereinafter Draft Dec. 1999]; U

NIFORM MEDIATION ACT (Draft Jan. 2000)

(visited Mar. 20, 2000) <http://www.law.upenn.edu/bll/ulc/mediat/med100.htm> [hereinafter

Draft Jan. 2000]. The most recent version is the March 2000 draft. The Draft Act will undergo

an evaluation in April 2000 before being forwarded in final form to the NCCUSL in July 2000. If

approved by the NCCUSL, it will be forwarded to the ABA House of Delegates for final approval

in February 2001. See Draft Unif. Mediation Act General Information (visited Feb. 18, 2000)

<http://www.pon.harvard.edu/guests/uma/info.htm> [hereinafter Draft Act General Information].

2. See Draft Act General Information, supra note 1; Reuben & Rogers, supra note 1, at 18.

3. Reuben & Rogers, supra note 1, at 18.

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replace the hundreds of pages of complex and often conflicting statutes across

the country with a few short pages of simple, accessible, and helpful rules.”

Abundant state regulation of mediation apparently reflects state policy

makers’ special concern with quality mediation.

As will be discussed in more

detail in the following sections of this Comment, hundreds of state statutes,

regulations, and rules address mediation in one form or another.

The

enormous body of law varies greatly with regard to the applicable contexts and

the scope of regulation.

California alone has eight statutes addressing

mediator qualifications and ten statutes requiring mandatory use of mediation

in business, family, agriculture, health and public contract disputes.

In all,

California has over 200 statutes and rules governing or addressing mediation.

The trend to extensively regulate mediation is not unique to California; nearly

all states and the federal courts have regulated mediation in an attempt to

ensure the quality of the process.

One of the major aims of the Draft Act is to provide for quality mediation

procedures.

The Draft Act “seeks to help assure the fairness of mediation,

both in fact and in perception”

by replacing the “tangle of legal requirements

regarding mediation”

with three concise mediation procedure provisions.

The Draft Act first requires that a mediator disclose any actual or potential

conflict of interest.

Second, the Draft Act provides that, if requested by a

4. Id.

5. N

ANCY H. ROGERS & CRAIG A. MCEWEN, MEDIATION: LAW, POLICY & PRACTICE §

2:04, at 17 (2d ed. 1994 & Supp. 1998).

6. See id. § 13:01, at 1.

7. Id.

8. Id. app. B, at 153 (Supp. 1998).

9. ABA to Develop Model State Mediation Law, 53 D

ISP. RESOL. J. 5 (1998).

10. See R

OGERS & MCEWEN, supra note 5, at app. B. See also John D. Feerick, Toward

Uniform Standards of Conduct for Mediators, 38

S. TEX. L. REV. 455, 456 (1997) (discussing

Alternative Dispute Resolution programs in general and stating that in 1997 eighty out of ninety-

four federal district courts had instituted programs pursuant to the Civil Justice Reform Act of

1990).

11. Draft Mar. 2000, supra note 1, § 9. The other major focus of the Draft Act is

confidentiality. See id. § 4-8. Confidentiality is considered a “cornerstone” of mediation due to

the question of whether a mediator or mediating parties may testify as to mediation

communications should subsequent litigation arise. See Alan Kirtley, Best of Both Worlds, D

ISP.

RESOL. MAG., Winter 1998, at 5. “There are currently more than 250 state mediation

confidentiality statutes, most of which vary greatly in terms of scope and application, even within

a single state.” Reuben & Rogers, supra note 1, at 18. A uniform act is advocated to provide

confidentiality protection to all types of mediations and to “mend these holes in our national

statutory fabric” so that a mediator in a state with confidentiality provisions does not have to fear

being called to testify in another state lacking the same confidentiality protections. Id.

12. Reuben & Rogers, supra note 1, at 18.

13. Draft Dec. 1999, Reporter’s Notes, supra note 1, § 1.

14. Draft Mar. 2000, supra note 1, § 9 (a), (b), and (c).

15. Id. § 9(a).

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party, there must be disclosure of the mediator’s qualifications to mediate the

dispute.

Finally, the Draft Act attempts to ensure quality by upholding a

disputant’s right to representation during mediation proceedings.

In addition

to these provisions, earlier versions of the Draft Act contained a clause

declaring that there is no immunity from civil liability for mediators other than

that provided under common law judicial immunity for court-connected

mediators.

The immunity provision, however, has since been deleted. As

currently written and if adopted by the states, the Draft Act’s provisions for

quality mediation procedures will apply (1) when a dispute is referred or

ordered to mediation by a court, government entity or mediator and (2) where

the parties enter into a written or electronically recorded agreement to

mediate.

This Comment discusses the Draft Act’s contextual applicability and its

provisions for quality mediation procedures.

Section II provides a historical

overview of the institutionalization of mediation leading to the enactment of

numerous state regulations and ultimately the drafting of a uniform act.

Section III examines the scope of the Draft Act’s applicability and compares

the provisions purporting to ensure quality mediation procedures with the

existing state laws the Draft Act will attempt to replace. In Section IV, this

Comment turns to the questions of whether the Draft Act is aimed at the proper

mediation contexts. Where the Draft Act is aimed at the proper mediation

contexts, this Comment will address whether the methods employed in the

Draft Act can be effective without a loss of the advantages of mediation. It

will be argued that although uniform regulation ensuring quality procedures in

court referred and court ordered mediation is well founded, the Draft Act may

fail to unify the states on all salient issues, and it inappropriately applies to

private mediation. Finally, Section V concludes that the Draft Act is a

commendable effort but its broad applicability may prevent it from clearing up

the clutter of mediation regulation.

II.

HISTORY: THE INSTITUTIONALIZATION AND REGULATION OF MEDIATION

Mediation is an alternative to litigation where disputing parties agree to use

an impartial third party to aid in the negotiation process.

It is meant to be an

16. Id. § 9(b).

17. Id. § 9(c).

18. See Draft Jan. 2000, supra note 1, § 3(b); Draft June 1999, supra note 1, § 4(b).

19. See Draft Mar. 2000, supra note 1, § 3 (defining mediation, mediator and disputant).

20. This Comment will not discuss the Confidentiality Provisions of the Draft Act. For a

discussion of the subject see R

OGERS & MCEWEN, supra note 5, § 9:01, and Kirtley, supra note

11.

21. See B

LACK’S LAW DICTIONARY 981 (6th ed. 1990). Definitions of mediation have

varying language; however, the definitions almost always encompass the aspects of (1) agreement

of the parties to negotiate, (2) with the aid of a neutral mediator, and (3) in hopes of leading to a

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informal and simple process.

The key is that a neutral person, a third party,

or a person with no “direct stake” in the dispute aids, facilitates, or participates

in the negotiations.

The neutral party does not resolve the dispute,

however.

In fact, there is no guarantee that the dispute will be resolved at all

through the mediation process since resolution depends on the voluntary

consent and agreement of all disputing parties.

If the dispute is resolved,

however, and the parties reach an agreement, the written settlement contract

has the same binding effect on the parties as any other compromise or

settlement. Thus, traditional contract principles control.

Compared to litigation, mediation has the potential of “reducing the cost,

time, and stress of dispute resolution. . . . In appropriate cases, mediation

provides parties with a simplified and economical procedure for obtaining

prompt and equitable resolution of their disputes and a greater opportunity to

participate directly.”

Mediation tends to decrease the time it takes litigating

consensual resolution. See KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 12

(1994) (“Mediation is the process where the third party neutral, whether one person or more, acts

as a facilitator to assist in resolving a dispute between two or more parties.”). See also

WYO.

STAT. ANN. § 1-43-101 (Michie 1977) (defining mediation as “a process in which an impartial

third person facilitates communication between two (2) or more parties in conflict to promote

reconciliation, settlement, compromise or understanding”); I

ND. CODE ANN. § 34-6-2-78 (West

1999) (defining mediation as “a process where at least two (2) disputing parties choose to be

guided to a mutually agreeable solution with the aid of a mediator”); A

LA. CODE § 6-6-20 (1998)

(stating that mediation means “a process in which a neutral third party assists the parties to a civil

action in reaching their own settlement but does not have the authority to force the parties to

accept a binding decision”). However, some states have different definitions depending upon the

context. For example, Michigan defines medical malpractice mediation as a panel of five

members who evaluate the dispute and make specific findings. M

ICH. COMP. LAWS §§

600.4905(1), 600.4915 (1996).

22. Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin’s Grid,

3 H

ARV. NEG. L. REV. 71, 92 (1998) (quoting Professor Lon Fuller who stated that “the central

quality of mediation is its capacity to reorient the parties towards each other, not by imposing

rules on them, but by helping them to achieve a new and shared perception of their relationship”);

OGERS & MCEWEN, supra note 5, § 13:01, at 1.

23. S

AM KAGEL & KATHY KELLY, THE ANATOMY OF MEDIATION: WHAT MAKES IT WORK

185 (1989).

24. See Chris Guthrie & James Levin, A ‘Party Satisfaction’ Perspective on a

Comprehensive Mediation Statute, 13 O

HIO ST. J. ON DISP. RESOL. 885, 890 (1998) (stating that a

mediator has no authority to impose a decision, as a judge or arbitrator can).

25. K

AGEL & KELLY, supra note 23, at 190-92.

26. R

OGERS & MCEWEN, supra note 5, § 4:14. See, e.g., LA. REV. STAT. ANN. § 9:4111

(West Supp. 1999) (stating that if the parties to mediation agree to settle, “the agreement is

enforceable as any other transaction or compromise”).

27. C

AL. CIV. PROC. CODE § 1775 (West 1982).

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parties to reach a settlement;

thus, it is favored for efficiency reasons. On a

more personal level, however, mediation is favored because it necessarily

“produces a solution that is agreeable to everyone” due to its requirement of

voluntary agreement to settle.

The mediator’s role as a counselor to both

parties acts as a “stabilizing, rational influence” giving the parties the

opportunity to “openly vent their hostilities,”

thereby leading to a general

reduction of present and future conflict among the parties.

Mediation is said to reduce hostility and allow disputing parties to control

the outcome rather than leaving the decision to an unrelated party’s binding

determination.

With an “emphasis on neutrality, individual responsibility,

and mutual fairness,” it has been noted that “[m]ediation, as an alternative to

the adversarial system, is less hemmed in by rules of procedure, substantive

law, and precedent.”

Thus, mediation allows the parties to find a resolution

that suits them, even to the extent that the terms of the agreement are “wholly

outside the realm of the law.”

For instance, parties can agree to alternatives

beyond the limited legal remedies in an effort to bring satisfaction to all

involved.

28. Nancy H. Rogers & Craig A. McEwen, Employing the Law to Increase the Use of

Mediation and to Encourage Direct and Early Negotiations, 13 O

HIO ST. J. ON DISP. RESOL. 831,

837 (1998) [hereinafter Rogers & McEwen, Employing the Law].

29. K

AGEL & KELLY, supra note 23, at 191.

30. Deborah R. Sundermann, The Dilemma of Regulating Mediation, 22 H

OUS. L. REV. 841,

845 (1985).

31. Id. at 842, 864. Despite general support, some disputes have been deemed inappropriate

for mediation. It has been argued that Brown v. Board of Education, 349 U.S. 294 (1955), the

landmark civil rights decision by the United States Supreme Court, is the paradigmatic example

of a case inappropriate for mediation because the racial climate at the time would not have

supported a voluntary end to segregation. In addition, the constitutional precedent handed down

by the Supreme Court would have been lost and would not have been available for subsequent

civil rights cases. Nonetheless, there is agreement that mediation is not necessarily inappropriate

in all civil rights cases. The decision of whether to litigate or mediate may depend on whether a

precedent needs to be set or whether the parties want to “change custom and orientation at a

deeper level . . . .” Steven Keeva, When Mediation Doesn’t Work, A.B.A. J.,

Oct. 1999, at 88

(quoting Margaret Herman, University of Georgia, Athens).

32. Sundermann, supra note 30, at 847. See also Guthrie & Levin, supra note 24, at 890

(discussing party satisfaction in mediation).

33. Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard

Governing Nonrepresentational Attorney Mediation, 7 G

EO. J. LEGAL ETHICS 213, 217-18

(1993).

34. Sundermann, supra note 30, at 847. See also Smiley, supra note 33, at 217 (stating that

parties are encouraged to “consider societal norms, applicable law, and other factors they deem

relevant in reaching resolution”).

35. Sundermann, supra note 30, at 847. “For example, if Aristotle accuses Brutus of

vandalizing his house, but cannot legally prove it, Brutus can agree to ‘stop’ vandalizing the

house if Aristotle will stop kicking Brutus’ dog. The disputants and the mediator generate

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The most basic form of mediation, two persons seeking the help of a third

person to end a dispute, is claimed to be older than the Bible.

In fact, use of

mediation as the primary rather than the alternative means of conflict

resolution can be traced to ancient China over two thousand years ago.

However, mediation contexts today have expanded beyond this raw form.

They now include professional mediation services offered to the public by

individuals purporting to be mediators by trade and to court referred and court

ordered mediation programs, acting as a supplement to or replacement of the

litigation process. As discussed below, these newly created forms constitute

the institutionalization of mediation and have spawned the extensive mediation

regulation that exists today.

A. The Institutionalization of Mediation

Although use of mediation likely existed in the United States from its

beginnings when European colonists attempted to settle their own disputes,

organized use of mediation first arose with the labor movement in the late

1800s.

In 1913, Congress created the Department of Labor and appointed the

Secretary of Labor to act as mediator of labor and union disputes to expedite

resolution and avoid strikes.

With an increased need for mediation services,

Congress then created the Federal Mediation and Conciliation Service (FMCS)

in 1947.

The FMCS had jurisdiction over and provided mediation for

industry disputes affecting interstate commerce, private non-profit health

facilities, and federal government agencies.

The use of mediation moved beyond labor and industry disputes in the

1960s when the American Arbitration Association began establishing and

privately funding neighborhood mediation projects.

The projects provided

low-cost dispute resolution services to the public as an alternative to litigating

minor disputes.

By the 1970s, several major cities had instituted similar

mediation programs.

alternatives that arise from the totality of the specific facts. The forum institution imposes no rule

of law; no precedent is set or followed.” Id.

36. K

OVACH, supra note 21, at 18.

37. Id. at n.14.

38. See generally id. at ch. 2.

39. Id. at

18–20; ROGERS & MCEWEN, supra note 5, § 5:01, at 1.

40. K

OVACH, supra note 21, at 20.

41. Id. See also R

OGERS & MCEWEN, supra note 5, § 5:01, at 1.

42. K

OVACH, supra note 21, at 20.

43. See id. at 21; Sundermann, supra note 30, at 843.

44. K

OVACH, supra note 21, at 21.

45. Sundermann, supra note 30, at 843. See also K

OVACH, supra note 21, at 21.

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In the 1970s, the use of mediation “generated widespread attention among

the public, bar, and judiciary.”

Increased caseloads created a “renewed

interest among jurists in the greater efficiency of consensual dispute resolution

compared to traditional court processes,” and alternative methods of dispute

resolution, as a part of the court system, were given a “fresh, hard look.”

1971, one of the first court sponsored mediation programs was created in

Columbus, Ohio.

Law Student mediators assisted in resolving minor

criminal actions as part of the City Prosecutor’s Office.

The concept was

adopted in New York City in 1975 with the opening of the Institute for

Mediation and Conflict Resolution.

Although these programs were praised and encouraged, the modern

movement towards court sponsored mediation did not escalate until the Pound

Conference in 1976.

The Pound Conference focused on the perceived public

dissatisfaction with the American legal system, including the overcrowded,

expensive courts, and the participants of the Conference searched for ways to

increase access to justice.

As a result, Neighborhood Justice Centers, later

renamed Dispute Resolution Centers, were created to provide mediation

services at low cost to disputing parties after referral by local courts.

Court

referral to Dispute Resolution Centers led to the direct use of mediation in the

court system, and “the idea of a ‘multi-door’ courthouse began to surface.”

Over time, legislatures began granting courts the authority to mandate that

parties attempt mediation prior to, or as part of, the litigation process.

46. ROGERS & MCEWEN, supra note 5, § 5:02, at 4.

47. Id. (quoting Chief Justice Warren E. Burger from his remarks at the Arthur T. Vanderbilt

dinner on November 18, 1982).

48. K

OVACH, supra note 21, at 21.

49. Id.

50. Id.

51. Id. See also Legislation on Dispute Resolution, A.B.A.

STANDING COMMITTEE ON DISP.

RESOL. 2 (1990) [hereinafter Legislation 1990].

52. Craig A. McEwen & Laura Williams, Legal Policy and Access to Justice Through

Courts and Mediation, 13 O

HIO ST. J. ON DISP. RESOL. 865, 866 & n.5 (1998); KOVACH, supra

note 21, at 21.

53. K

OVACH, supra note 21, at 22.

54. Id. A “multi-door courthouse” is one in which an individual with a dispute can choose

alternatives to the traditional litigation process. Id. See also R

OGERS & MCEWEN, supra note 5,

§ 5:03, at 12.

55. K

OVACH, supra note 21, at 23, 48 (noting that federal courts often rely on Rule 16). The

trend was especially prevalent in the family dispute arena. Bobby Marzine Harges, Mediator

Qualifications: The Trend Toward Professionalism, 1997 BYU L. R

EV. 687, 690 (1997).

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B. Regulating Institutionalized Mediation

The use of mediation in conjunction with the litigation process continued

to increase, and consequently, numerous state regulations were enacted.

New

York passed the first court-related dispute resolution law, including specific

mediation provisions, in 1981.

The law gave New York courts the authority

to “grant adjournments in contemplation of dismissal for certain criminal

proceedings on the condition that the party(ies) participate in dispute

resolution.”

The law stated that mediators utilized in the program had to

obtain twenty-five hours of training in conflict resolution and that all

communications relating to the mediation were confidential.

The institutionalization of mediation was praised for its efficiency and cost

effectiveness, and expansion of similar programs was advocated.

At a

dispute resolution conference in 1983, the Honorable Lawrence H. Cooke

stated:

Mediation . . . must move onward. It must consider entering more

comprehensively into less explored areas. . . . Undoubtedly, the most

compelling need of mediation, if it is to function well, is that it be

institutionalized. Mediation must be incorporated into existing judicial

structures.

Judge Cooke’s advice was apparently heeded. By 1984, Colorado and

Oklahoma had joined New York in passing comprehensive Dispute Resolution

Acts instituting court related mediation programs,

five states had adopted

family and divorce mediation laws, and six states had appropriated state funds

to mediation.

The trend continued throughout the 1980s, and in 1990 the

ABA Standing Committee on Dispute Resolution reported the existence of

56. Kimberlee K. Kovach, Good Faith in Mediation – Requested, Recommended, or

Required? A New Ethic, 38 S.

TEX. L. REV. 575, 576-77 (1997) (“As a catalyst for, and a result

of, the expanded use of mediation, a plethora of laws have been enacted.”). See also James J.

Brudney, Mediation and Some Lessons from the Uniform State Law Experience, 13 O

HIO ST. J.

DISP. RESOL. 795, 799-801 (1998) (discussing the “current regulatory setting”); ROGERS &

MCEWEN, supra note 20, app. B (listing all state and federal statutes concerning mediation).

57. State Legislation on Dispute Resolution, A.B.A.

SPECIAL COMMITTEE ON ALTERNATIVE

MEANS OF DISP. RESOL. 2 (1982)(citing S6369-B; Ch. 847 of the laws of 1981 and stating that

“New York has the distinction of being the first and only state to pass a comprehensive dispute

resolution law”). Noted advantages of the law include its promotion of the “whole concept of

mediation in New York.” Id. at 3.

58. Id. at 4.

59. Id. at 4-5.

60. Lawrence H. Cooke, Mediation in the 80’s: Where are We Headed?, in P

ROBLEM

SOLVING THROUGH MEDIATION 18 (Maria R. Volpe & Thomas F. Christian eds., 1984).

61. Id.

62. Legislation on Dispute Resolution, A.B.A.

SPECIAL COMMITTEE ON DISP. RESOL. 1

(1984).

63. Id.

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1129

nearly 200 state statutes dealing with mediation.

As stated in the

Committee’s report, “in the 80’s [dispute resolution processes such as

mediation] were rediscovered, expanded, and applied to almost every

conceivable area capable of fomenting dispute”

and “[t]he recent legislation

boom is testament to its widespread acceptance.”

Between 1989 and 1993, mediation legislation increased from 517 pages of

edited statutes to over 2000 individual state statutes concerning mediation.

Hundreds of the currently enacted state statutes are limited to provisions

authorizing the use of mediation in given contexts

or by state administrative

agencies.

Many others merely encourage the use of mediation

or provide

funding for state sponsored mediation centers.

The remaining statutes

purport to regulate everything from mediator qualifications to party privileges

yet often apply to only court ordered or court referred mediation sessions.

This abundance of regulation has been criticized as confusing, incoherent,

and complex.

As stated by James Alfini, chair of the ABA Section of

Dispute Resolution: “Those participating in mediation often face divergent

provisions for different mediation contexts, even within the same state.”

Professor Joseph Stulberg

stated that “while the use of mediation has

expanded, a common understanding as to what constitutes mediation has

weakened. It is important . . . to identify and clarify the principles and

64. See Legislation 1990, supra note 51, at 1-2 (reporting 300 Alternative Dispute

Resolution statutes of which 181 were mediation statutes).

65. Id. at 2.

66. Id. at 4.

67. R

OGERS & MCEWEN, supra note 5, § 13.01.

68. Rogers & McEwen, Employing the Law, supra note 28, at 863. See, e.g., L

A. REV. STAT.

ANN. § 37:381 (West 1988) and KAN. STAT. ANN. § 65-1824 (1992) (authorizing the board of the

barbershop industry to act as mediator in any controversy between barbers); M

E. REV. STAT.

ANN. tit. 19-A § 1084 (West 1998) (allowing courts to refer grandparent visitation rights disputes

to mediation); M

ASS. GEN. LAWS ch. 94A § 2 (1997) (granting the Commissioner the power to

mediate disputes between milk producers and dealers).

69. See, e.g., I

ND. CODE § 4-21.5-3.5-1 (1999).

70. See, e.g., 710 I

LL. COMP. STAT. 20/1 (West 1999) (encouraging not-for-profit dispute

resolution centers).

71. See, e.g., A

RK. CODE ANN. § 16-7-203 (Michie 1999).

72. See R

OGERS & MCEWEN, supra note 5, § 13:02, at 4 and app. B.

73. See, e.g., Guthrie & Levin, supra note 24, at 885 (characterizing legislation as the

“current patchwork of often confusing and conflicting mediation laws”).

74. Legal Groups Invite Comment on Draft of Proposed Uniform Mediation Act for States,

U.S.L.W., Aug. 31, 1999, at 2127 [hereinafter Legal Groups].

75. Joseph Stulberg is a professor of law and Director of Advanced Studies at the University

of Missouri – Columbia School of Law. See Brudney, supra note 56, at n. a1.

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dynamics which together constitute mediation as a dispute settlement

procedure.”

Within the past several years, the creation of a uniform act for mediation

has been increasingly advocated.

Nancy Rogers,

a lead proponent of a

uniform mediation act, gave three reasons supporting its inception:

First, an act would present an opportunity to establish a level playing field.

Second, it might increase the predictability and reliability of how the many

states would deal with certain legal questions. . . . Third . . . since many states

have not examined statutory solutions, a uniform statute might provide for

sponsored mediation.

103

Further, the Draft Act does not distinguish between

types of disputes, for instance domestic and criminal or business and

agricultural, but instead applies uniformly to all disputes.

104

Generally, the states have not taken a similar approach. Many state

statutes apply only to court referred or court ordered mediation,

105

granting

courts the authority to refer or order disputes to mediation and then setting

99. Reuben & Rogers, supra note 1, at 19.

100. Draft Mar. 2000, supra note 1, § 3(a). “Record” is defined as “information that is

inscribed on a tangible medium or that is stored in an electronic or other medium and is

retrievable in perceivable form.” Id. § 3(g).

101. Id. § 3(b).

102. Id. § 3(d).

103. See id. § 3.

104. See Draft Mar. 2000, supra note 1, § 3.

105. Court ordered or court referred mediation is also commonly referred to as court-annexed

or mandatory mediation. See Note, Mandatory Mediation and Summary Jury Trial: Guidelines

for Ensuring Fair and Effective Processes, 103 H

ARV. L. REV. 1086, 1091-96 (1990) [hereinafter

Mandatory Mediation].

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1133

guidelines and standards for the court-connected mediation sessions.

106

discussed in conjunction with the quality provisions to follow, many states

require confidentiality, disclosure, and mediator immunity when mediation is a

result of a court referral or order.

107

Likewise, few states have enacted comprehensive mediation acts

applicable to all types of disputes.

108

Legislation is more often categorized in

accordance with substantive law.

109

For instance, the California Code contains

separate provisions for family,

110

labor,

111

attorney discipline,

112

truancy,

113

planning and zoning,

114

water rights,

115

unemployment compensation,

116

Native American historical site disputes

117

and more.

118

It is claimed that distinct provisions may better address subject-specific

issues.

119

The regulation of family dispute mediation illustrates this claim.

Divorce, child custody, paternity and other family disputes likely involve

emotional as well as legal issues.

120

Therefore, the issue of attorney

representation is unique in that bargaining power may be greatly unbalanced

and the parties’ view of economic concerns may be fogged by emotions.

121

addition, mediator qualifications are especially significant because divorce,

domestic violence, and child custody mediations may include an aspect of

counseling.

122

In fact, many states have exempted domestic violence cases

from mandatory dispute programs due to the sensitive issues raised.

123

Emotions and counseling may not weigh as heavily in non-domestic disputes

106. Id. n. 34 (citing for example MINN. STAT. § 484.74 (1990)).

107. See generally id. (discussing ways to ensure fair and efficient mandatory mediation

programs).

108. But see Louisiana Mediation Act, L

A. REV. STAT. ANN. § 4101 - 4112 (West Supp.

1999) and Kansas Dispute Resolution Act, K

AN. STAT. ANN. § 5-501 – 5-516 (1995).

109. See R

OGERS & MCEWEN, supra note 5, § 12 (discussing issues related to specific types

of disputes which justify including mediation statutes within substantive laws).

110. C

AL. FAM. CODE § 3160-3161 (West 1994).

111. C

AL. LAB. CODE § 65 (West 1989).

112. C

AL. BUS. & PROF. CODE § 6086.14 (West 1990).

113. C

AL. WELF. & INST. CODE § 601.3 (West 1998).

114. C

AL. GOV’T CODE § 66031 (West 1997).

115. C

AL. WATER. CODE § 1219 (West 1971).

116. C

AL. UNEMPL. INS. § 1282 (West 1986).

117. C

AL. PUB. RES. CODE § 5097.94 (West 1984).

118. See R

OGERS & MCEWEN, supra note 5, § 13.01, at 2 & app. B.

119. Professor Stulberg of the University of Missouri-Columbia argues against a uniform

mediation law because of the complication created by the broad variety of fields where mediation

is applied. See Duve, supra note 79. See also R

OGERS & MCEWEN, supra note 5, § 12.

120. R

OGERS & MCEWEN, supra note 5, § 12:02.

121. Id. § 12:02, at 2-3.

122. Id.

123. Id. § 12:02, at 9.

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such as business or corporate disputes, thus making attorney representation and

qualifications less of an issue.

124

Another example of the professed need for subject-specific regulation is

within the labor and employment field. States such as California, Connecticut,

Kentucky, Maryland, Massachusetts, and North Carolina make distinctions

between labor and other types of disputes when regulating for

confidentiality.

125

For labor disputes, confidentiality requirements apply only

to the mediator or mediation agency and not to all mediation communication;

in other types of disputes, confidentiality applies to all parties.

126

Nonetheless, there has been some attempt among the states to regulate

varying disputes in a more uniform fashion than provided in subject-specific

regimes. For instance, in Kansas, separate statutory provisions existed to

regulate mediation confidentiality for employment, child custody, and

environmental disputes.

127

However, in 1996, the Kansas legislature amended

the various statutes to reflect identical provisions.

128

Instead of a subject-specific approach, the drafters of the Draft Act

attempted to maintain a broad focus, covering only those aspects of mediation

common to all types of disputes while leaving flexibility for local variations

and supplements.

129

In doing so, the Draft Act has three concise provisions to

ensure quality mediation procedures in all types of disputes.

130

The Draft Act

requires mediator disclosure of any conflicts of interest,

131

provides for

disclosure of mediator qualifications when requested,

132

and ensures a party’s

right to representation.

133

Although not included in the current version of the

Draft Act, previous versions limited mediator immunity to common law

immunity for court-connected mediators.

134

In the following sections, this

Comment will explore the Draft Act quality provisions and offer a comparison

between them and the closely related state laws already in effect, paying

particular attention to contextual applicability.

124. Compare ROGERS & MCEWEN, supra note 5, § 12:02, with id. ch. 12:03.

125. Id. § 12:08, at 29 & n.5.

126. Id.

127. See R

OGERS & MCEWEN, supra note 5, § 12:01, at 1.

128. Id. § 13:02, at 111.

129. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 1.

130. See Draft Mar. 2000, supra note 1, § 9 (formerly section 3 of the January version and

section 4 of the June and December versions).

131. See Draft Mar. 2000, supra note 1, § 9(a).

132. See id. § 9(b).

133. See id. § 9(c).

134. See Draft Jan. 2000, supra note 1, § 3(b).

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1135

A. Disclosure

The Draft Act contains two disclosure provisions; one pertaining to

conflicts of interest disclosure and the other to qualifications disclosure. The

conflicts of interest provision states:

Before accepting appointment or engagement a mediator shall make an inquiry

that is reasonable under the circumstances to determine whether there are any

facts that a reasonable person would consider likely to affect the impartiality of

the mediator, including any financial or personal interest in the outcome of the

mediation or existing or past relationships with a disputant or any known or

foreseeable participant in the mediation.

135

Regarding qualifications, the Draft Act requires that “[i]f asked by a disputant,

a mediator shall disclose the mediator’s qualifications to mediate a dispute.”

136

The first version of the Draft Act differed from the subsequent versions in

that it required the parties to request disclosure of both conflicts of interest and

qualifications prior to obligating the mediator to disclose the information.

137

The current version, as stated, mandates disclosure of conflicts of interest in

the absence of a request while disclosure of qualifications is only required

upon request.

138

The change was apparently made due to the importance of the

knowledge of a conflict of interest prior to mediation.

139

The drafters contend,

in the Reporter’s Notes to the section, that requiring disclosure of conflicts of

interest and, upon request, qualifications, “sets a minimum standard.”

140

They

further contend that the disclosure requirement, applicable to both court-

connected and private mediators, “promot[es] the market place as a check on

quality among prospective mediation clients.”

141

It should be noted that the Draft Act “does not establish or call for

mediator qualifications” due to the wide variance in what qualifies a mediator

for a given dispute.

142

The Reporter’s Notes state that “[q]ualifications may be

important, but they need not be uniform” due to the variety of contexts in

which the Draft Act will apply and the “unique characteristics that may qualify

a particular mediator for a particular mediation.”

143

Like the Draft Act, some states have attempted to regulate the quality of

mediation by requiring disclosure in certain mediation contexts.

144

In the

135. See Draft Mar. 2000, supra note 1, § 9(a).

136. Id. § 9(b).

137. Draft June 1999, supra note 1, § 4(a).

138. See Draft Jan. 2000, supra note 1, § 3(a).

139. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(a).

140. Id.

141. Id.

142. Id.

143. Id.

144. See, e.g., S.D.

CODIFIED LAWS § 25-4-58.2 (Michie 1999); LA. REV. STAT. ANN. §

9:4107 (West Supp. 1999).

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following sections, state regulation regarding disclosure of conflicts of

interests and disclosure of qualifications will be discussed in turn.

1. Disclosure of Conflicts of Interest

It is claimed that disclosure of potential conflicts of interest increases

parties’ confidence in the process by ensuring impartiality.

145

In a South

Dakota statute, the legislature proclaimed that because mediation is based on

“participation and self-determination of the parties,”

146

the parties’ confidence

in the mediator and willingness to cooperate is important, and knowledge that

the mediator is impartial may increase the parties’ acceptance of the process.

Based on that principle, South Dakota requires that family court mediators

“fully disclose to all parties involved in the mediation any actual or potential

conflicts of interest.”

147

Self-withdrawal is expected if the mediator believes

that impartiality is impossible or if either party requests withdrawal after full

disclosure.

148

Louisiana has a similar provision requiring disclosure of potential conflicts

of interest.

149

As part of the Louisiana Mediation Act,

150

upon motion of both

parties to a dispute, the court may refer a civil case to mediation and the

assigned mediator is required to disclose “all past or present conflicts or

relationships with the parties or their counsel.”

151

Likewise, in a very narrowly

applicable statute, Vermont requires disclosure of conflicts of interest by

mediators in mobile home park disputes.

152

The statute identifies potential

conflicts of interest as “any experience as a mobile home park owner, resident

or leaseholder.”

153

In addition to these state statutes, the Model Standards of Conduct for

Mediators (“Model Standards”), developed jointly by the ABA, American

Arbitration Association, and the Society of Professionals in Dispute

Resolution, advanced a concept similar to the Draft Act’s disclosure

provision.

154

The Model Standards, intended to be guidelines for mediators

and to encourage high quality mediation,

155

suggest that “a mediator shall

145. Carole Silver, Models of Quality for Third Parties in Alternative Dispute Resolution, 12

HIO ST. J. ON DISP. RESOL. 37, 53 (1996).

146. S.D.

CODIFIED LAWS § 25-4-58.2 (Michie 1999).

147. Id.

148. Id.

149. See L

A. REV. STAT. ANN. § 9:4107 (West Supp. 1999).

150. See L

A. REV. STAT. ANN. § 4101- 4112 (West Supp. 1999).

151. L

A. REV. STAT. ANN. § 9:4107.

152. V

T. STAT. ANN. tit. 10, § 6252 (1997).

153. Id. Regulation of this type of conflict, a perceived conflict stemming from closeness in

circumstances, is referred to as “restriction.” See Silver, supra note 145, at 53–56.

154. Model Standards of Conduct for Mediators, reprinted in Feerick, supra note 10, at 478.

155. Id. at 459.

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1137

disclose all actual and potential conflicts of interest reasonably known to the

mediator” and then decline to act as the mediator if any party does not

consent.

156

The Model Standards state that especially sensitive conflicts of

interest, which should be disclosed in all cases, include past personal or

professional relationships with the disputants or the attorneys and a financial or

personal interest in the outcome of the mediation.

157

2. Disclosure of Qualifications

Disclosure of qualifications, compared to disclosure of conflicts of interest,

has been called a more novel requirement.

158

Very few states require

disclosure of qualifications. One of the few examples is the Louisiana

Mediation Act.

159

It requires disclosure of professional qualifications for court

appointed mediators and states that “upon receiving notice of appointment as a

mediator in a particular proceeding, the mediator shall make available to all

parties a list of his professional qualifications, curriculum vitae, and fee

schedule.”

160

Regardless of disclosure requirements, qualification standards have been

deemed “[o]ne of the most controversial issues in the Alternative Dispute

Resolution (ADR) field.”

161

Yet, among forty states there are over one

hundred statutes requiring entry-level mediator qualifications in at least some

types of court referred or court ordered mediation.

162

However, there is no real

similarity among the states; some regulations require certain educational

degrees, others merely require experience.

163

For example, the Florida Standards of Professional Conduct require

mediators to acquire knowledge and training in the mediation process and to

understand the appropriate professional ethics standards, but it does not

enumerate standards of qualification.

164

Conversely, the Louisiana Mediation

Act requires forty hours of classroom training in mediation and, if not licensed

to practice law, 500 hours of dispute resolution prior to being appointed as a

qualified mediator.

165

156. Id. at 464.

157. Id.

158. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(a).

159. L

A. REV. STAT. ANN. § 9:4107.

160. Id.

161. Harges, supra note 55, at 687.

162. See R

OGERS & MCEWEN, supra note 5, § 11:02, at 4. Note that most qualification

statutes apply only in child custody disputes. See Paul F. Devine, Mediator Qualifications: Are

Ethical Standards Enough to Protect the Client?, 12 S

T. LOUIS U. PUB. L. REV. 187, 204 (1993).

163. Devine, supra note 162, at 204.

164. FLA.

STAT. ANN. Mediator Rule 10.120 (West 1992).

165. L

A REV. STAT. ANN. § 9:4106A (West Supp. 1999). The Louisiana Mediation Act also

requires that a qualified mediator participate in ten hours of annual training to maintain a listing

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California alone has an abundance of qualifications which vary depending

upon the nature and context of the dispute.

166

The California Rules of Court

provide that court-connected mediators of child custody and visitation disputes

should “undergo a minimum of 40 hours of mediation training within their first

six months of employment,” have two years experience in court mediation,

demonstrate competence, and meet the statutory education and experience

qualifications.

167

The statutory qualifications of the California Family Code

require:

(1) A master’s degree in psychology, social work, marriage, family and child

counseling, or other behavioral science substantially related to marriage and

family interpersonal relationships.

(2) At least two years of experience in counseling or psychotherapy, or both,

preferably in a setting related to the areas of responsibility of the family

conciliation court and with the ethnic population to be served.

(3) Knowledge of the court system of California and the procedures used in

family law cases.

(4) Knowledge of other resources in the community to which clients can be

referred for assistance.

(5) Knowledge of adult psychopathology and the psychology of families.

(6) Knowledge of child development, child abuse, clinical issues relating to

children, the effects of divorce on children, the effects of domestic violence on

children, and child custody research sufficient to enable a counselor to assess

the mental health needs of children.

168

Apart from family disputes, California requires mediators of certain

prisoner civil rights issues to “be a member in good standing of the Bar . . .

on the approved register of qualified mediators. LA. REV. STAT. ANN. § 9:4106B (West Supp.

1999).

166. See R

OGERS & MCEWEN, supra note 5, app. B at 152-55.

167. C

AL. R. OF CT. § 26(e).

168. C

AL. FAM. CODE § 1815(a) (West 1994) (applying to mediators by reference of CAL.

FAM. CODE § 3164 (West 1994)). Compare MICH. COMP. LAWS § 552.513(4) (1988) (a less

rigorous domestic dispute which requires “(a) One or more of the following: (i) A license or a

limited license to engage in the practice of psychology . . . or a master’s degree in counseling,

social work, or marriage and family counseling . . . (ii) Not less than 5 years of experience in

family counseling . . . (iii) A graduate degree in behavioral science and successful completion of a

domestic relations mediation training program with not less than 40 hours of classroom

instruction and 250 hours of practical experience . . . (iv) Membership in the state bar of

Michigan . . . (b) Knowledge of the court system of this state and the procedures used in domestic

relations matters (c)Knowledge of other resources in the community to which the parties to a

domestic relations matter can be referred for assistance (d) Knowledge of child development,

clinical issues relating to children, the effects of divorce on children, and child custody

research”); and K

AN. STAT. ANN. § 23-602 (1995) (requiring only mediation training and

knowledge of the judicial system with no degree requirement). See also Devine, supra note 162,

at 201-07 (discussing existing standards of qualifications including skills testing, ethical codes

and state laws).

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1139

with at least 10 years legal practice experience.”

169

Under the California Water

Code, disputes between a water supplier and water users may be mediated by a

mutually agreeable mediator or selected from an appointed panel of

“disinterested persons” through a process of elimination.

170

Finally, several

other California statutes leave selection and qualifications of the mediator

solely to the parties with no mandatory qualifications imposed.

171

The propriety of set qualifications has been questioned. Some argue that

instead of or perhaps in addition to training, mediators should be required to

pass a performance test based on a mock mediation evaluation.

172

It is argued

that a test would best evaluate the interactive skills of the mediator because the

mediator’s ability to investigate, display empathy, be inventive and persuasive,

and avoid distractions is more important than any academic skills.

173

The cost

of administering such a test is prohibitive however, and states have generally

confined regulation to the imposition of qualification standards.

174

The proponents of qualification standards argue that, unlike judges and

arbitrators, mediators do not necessarily have either legal or area expertise to

ensure the quality of the services they provide.

175

In addition, there is no

“backup scrutiny of appellate review” to legitimize the function of the

mediator.

176

In an attempt to ensure a certain level of quality, legislatures are

urged to impose requirements on mediators, including certification, training,

ethics codes and professional standards.

177

However, the “differing visions of

what mediation is and should be translate into varying views about mediation

training, qualifications, and ethics.”

178

The only real consensus on what

creates a qualified mediator is that “something is required.”

179

169. U.S. DIST. CT. RULES C.D. CAL., Pilot Prisoner Mediation Program.

170. C

AL. WATER CODE § 1219 (West 1971).

171. See, e.g., C

AL. GOV’T CODE § 66031 (West 1997); CAL. CIV. PROC. CODE § 1775.6

(West 1982).

172. Mandatory Mediation, supra note 105, at 1101.

173. Id.

174. Id.

175. Kovach & Love, supra note 22, at 104. “Mediators in the early programs came from all

walks of life. They were ‘community organizers, business persons, attorneys, social workers,

teachers, senior citizens, and homemakers.’” Harges, supra note 55, at 690.

176. Kovach & Love, supra note 22, at 104.

177. Mandatory Mediation, supra note 105, at 1101.

178. R

OGERS & MCEWEN, supra note 5, § 2:04, at 19.

179. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(a) (emphasis added). Note also

that some scholars claim all that is required to be “qualified” is the ability to be impartial. See

Silver, supra note 145, at 45.

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B. Right to Representation

The third mediation procedure provision of the Draft Act ensures a party’s

right to be represented at a mediation proceeding.

180

It states that “[a]

disputant has the right to have an attorney or other individual designated by the

disputant attend and participate in the mediation. A waiver of this right may be

revoked.”

181

The drafters contend that an absolute right to representation is

justified because “[t]he fairness of mediation is premised upon the informed

consent of the disputants to any agreement reached.”

182

Therefore, rather than

allow the mediator to decide whether attorney representation is appropriate, the

Draft Act leaves the decision to the disputants themselves.

183

In addition,

under the Draft Act’s language the disputants have the option to be represented

by a non-lawyer.

184

The drafters claim that this will act as another tool to

balance negotiating powers.

185

There is some disagreement in the mediation community as to whether the

attendance or absence of attorneys advances the quality of the mediation.

186

favor of attorney representation, it is argued that by providing the information

needed to make an informed decision about the resolution of a dispute, an

attorney’s presence aids the client.

187

In this view, attorneys “act as a crucial

check against uninformed and pressured settlement . . . .”

188

An attorney can

provide an opinion as to the strength of the other party’s argument or the

fairness of a proposal.

189

In addition, an attorney can speak for a nervous or

intimidated client who is unable to forward his or her own position with

confidence, thereby mitigating an imbalance of bargaining power among the

parties.

190

Further, as a method of increasing the use of mediation, it is argued that

“encouragement of lawyer participation in mediation [i]s a means to influence

lawyers to recommend mediation to their clients . . . .”

191

Once an attorney is

aware of the advantages of mediation and the potential for faster, less

180. Draft Mar. 2000, supra note 1, § 9(c).

181. Id.

182. Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(c) (citing Joseph B. Stulberg,

Fairness and Mediation, 13 O

HIO ST. J. ON DISP. RESOL. 909, 936-44 (1998)).

183. Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(c).

184. Draft Mar. 2000, supra note 1, § 9(c); Draft Dec. 1999, Reporter’s Notes, supra note 1, §

4(c).

185. Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(c).

186. See R

OGERS & MCEWEN, supra note 5, § 2:04, at 18-19.

187. See Rogers & McEwen, Employing the Law, supra note 28, at 854.

188. Id.

189. See Jean R. Sternlight, Lawyers’ Representation of Clients in Mediation: Using

Economics and Psychology to Structure Advocacy in a Nonadversarial Setting, 14 O

HIO ST. J. ON

DISP. RESOL. 269, 345-48 (1999).

190. Id.

191. See Rogers & McEwen, Employing the Law, supra note 28, at 853.

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1141

expensive dispute resolution, the attorney is more likely to encourage

mediation over traditional litigation.

192

Therefore, some have concluded that

having lawyers present can “protect against unfairness and, at the same time,

the process makes them more effective at recommending mediation.”

193

Not all scholars advocate right to representation laws. Opponents claim

that an attorney’s presence detracts from the parties’ ability to control the

outcome of the dispute.

194

Mediation is said to “empower”

195

parties because it

gives them control over the dispute resolution process. It is claimed that

attorney presence reduces party empowerment due to “the presumed loss of

control that results when lawyers ‘take over’ a case.”

196

The split in views on

the propriety of right to representation laws has resulted in a split in state

statutes. Some state regulations uphold the right to representation in mediation

negotiations

197

while others mandate the absence of all non-parties to the

dispute.

198

The differences often depend upon the nature of the dispute;

however, even within one category of dispute, namely domestic mediation,

there is no real consensus among the states.

199

Mediation of family disputes is one example of the disparity in right to

representation laws. Kansas expressly allows only the parties to attend

mediation sessions concerning domestic disputes.

200

Other states, California

and South Dakota for instance, do not entirely exclude attorneys from domestic

mediations, but give the mediator the authority to exclude attorneys if the

mediator so chooses.

201

Alaska and North Dakota statutes prohibit a mediator

from excluding an attorney.

202

Regardless, it has been noted that even where

allowed, “lawyers for the parties [in family disputes] do not attend

192. Id. at 844.

193. Id. at 854.

194. See R

OGERS & MCEWEN, supra note 5, § 2:04, at 18-19.

195. Id.

196. Id. (citing R

OBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF

MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994)).

197. See, e.g., A

LASKA STAT. § 25.24.060(c) (Michie 1998).

198. See, e.g., M

O. REV. STAT. § 162.959(9) (Supp. 1999) (prohibiting attorney participation

at special education mediation sessions).

199. R

OGERS & MCEWEN, supra note 5, § 12:02, at 3 (discussing “prolawyer and antilawyer

sentiments” in domestic dispute mediation).

200. K

AN. STAT. ANN. § 23-603(6) (1995).

201. See C

AL. FAM. CODE § 3182(a) (West 1994) (allowing the mediator of custody and

visitation disputes to exclude counsel “if, in the mediator’s discretion, exclusion of counsel is

appropriate or necessary”); S.D.

CODIFIED LAWS § 25-4-59 (Michie 1999) (stating that the

mediator may exclude counsel from divorce and separate maintenance mediation proceedings).

202. The Alaska statute for divorce and annulment states that counsel for the parties may

attend all mediation conferences. A

LASKA STAT. § 25.24.060(c) (Michie 1998). The North

Dakota statute states “the mediator may not exclude counsel from participation in the [contested

child] mediation proceedings.” N.D.

CENT. CODE § 14-09.1-05 (1996). See also OR. REV. STAT.

§ 107.785(1) (1983); W

IS. STAT. § 767.11(10)(a)(West 1993).

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mediation . . . .”

203

In fact, “only 14% of domestic court mediation

programs . . . report that lawyers attend most mediation sessions.”

204

In any

event, as with other forms of regulation for quality mediation, right to

representation laws vary depending upon the state and the type of dispute.

C. Mediator Immunity

Previous versions of the Draft Act purported to ensure quality mediation

through a mediator immunity clause.

205

The first version of the Draft Act

approached the issue from the standpoint of contractual disclaimers, also

known as exculpatory agreements.

206

It stated: “Unless immunity from

liability is extended to mediators by common law, rules of court, or other law

of this State, a contractual term purporting to disclaim a mediator’s liability is

void as a matter of public policy.”

207

However, later versions of the Draft Act

narrowed the provision from allowing immunity in any context covered by

state common or statutory law to only common law judicial immunity for

court-connected mediators. These provisions stated that “[u]nless mediators

fall within common law protections extending judicial immunity, no immunity

may be extended to mediators specifically for their conduct related to

mediation . . . .”

208

The immunity provision has since been eliminated entirely

from the Draft Act.

209

In the earlier versions, the drafters claimed to take an approach which

“diminishe[d] any non-judicial immunity that a mediator may enjoy under

current state law,” thereby putting mediators “on the same footing as lawyers

203. ROGERS & MCEWEN, supra note 5, § 12:02, at 3.

204. R

OGERS & MCEWEN, Employing the Law, supra note 28, at 864 n.134.

205. Draft Jan. 2000, supra note 1, § 3(b).

206. An exculpatory agreement is one which “releases one of the parties from liability for his

or her wrongful acts.” B

LACK’S LAW DICTIONARY 566 (6th ed. 1990).

207. Draft June 1999, supra note 1, § 4(b). It is common for exculpatory agreements to be

deemed against public policy in contexts other than mediation. See Arthur A. Chaykin, The

Liabilities and Immunities of Mediators: A Hostile Environment for Model Legislation, 2 O

HIO

ST. J. ON DISP. RESOL. 47, 77 (1986) (noting that “granting of an immunity is a matter of public

policy that balances the social utility of the immunity against the social loss of being unable to

attack the immune defendant”). In Wisconsin, for instance, the supreme court has enumerated

circumstances in which an exculpatory agreement will never be enforceable. Alexander T.

Pendleton, Enforceable Exculpatory Agreement, 70 W

IS. LAW. 10, 11 (Nov. 1997). Such

circumstances include excuse of intentionally or recklessly inflicted harm, an employer’s liability

for injury to an employee in the course of the employee’s employment, liability by a party

“charged with performing a service of great importance to the public,” and liability of a party

with a decisive advantage in bargaining strength. Id.

208. Draft Jan. 2000, supra note 1, § 3(b). The provision also states that “in an action against

a mediator arising out of conduct of the mediation session, reasonable attorney’s fees and other

expenses of litigation may be awarded to a prevailing defendant.” Id.

209. See Draft Mar. 2000, supra note 1.

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1143

who are prohibited by professional ethics from disclaiming liability.”

210

They

claimed that “mediators who disclose in violation of statutory provisions, who

hide conflicts of interest, or who exclude legal counsel from the sessions over

the objection of disputants should be accountable to disputants who are

hurt.”

211

However, the drafters further contended that court-connected

mediators pose less of a threat of lack of accountability than private mediators

due to court supervision; therefore, they initially did not object to common law

immunity for judicial mediators.

212

Some mediation scholars argue that mediating parties are protected by

liability imposed through traditional tort and contract causes of action.

213

party dissatisfied with a mediator’s services may have an action for false

advertising, breach of contract, slander, breach of fiduciary duty, negligent

performance of duties, defamation or deceptive practice.

214

Professor Arthur

A. Chaykin

215

argues that with the increased use of mediation, the various

types of disputes mediated, and the often emotional or hostile disputes

mediators face, it is inevitable that mediators will be sued.

216

The imposition

of liability can have a “salutory impact on an industry, assuring that certain

levels of quality are maintained . . . .”

217

Therefore, he argues that special

immunities for mediators are likely unnecessary.

218

Despite the potential need advocated by some mediation scholars to ensure

quality mediation through mediator liability,

219

several states have enacted

mediator immunity laws negating any liability that may have applied. For

example, Arizona law states that “a mediator is not subject to civil liability

except for those acts or omissions that involve intentional misconduct or

reckless disregard of a substantial risk of a significant injury to the rights of

others.”

220

As part of a general Courts and Civil Proceedings statute, the law

governs all mediation “pursuant to law, a court order or a voluntary decision of

the parties.”

221

Many immunity statutes apply only to court-connected mediation. For

example, the Colorado Dispute Resolution Act creates judicial dispute

210. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(b).

211. Id.

212. Id.

213. Chaykin, supra note 207, at 50-51.

214. Id. See also Cassondra E. Joseph, The Scope of Mediator Immunity: When Mediators

Can Invoke Absolute Immunity, 12 O

HIO ST. J. ON DISP. RESOL. 629, 630 (1997).

215. Professor Chaykin is an Associate Professor of Law at Northern Illinois University

College of Law. See Chaykin, supra note 207, at n.a.

216. Id. at 50.

217. Id.

218. Id.

219. See generally id.

220. A

RIZ. REV. STAT. § 12-2238 (1994).

221. Id.

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resolution programs and provides that the liability of such mediators “shall be

limited to willful or wanton misconduct.”

222

Likewise in both Illinois and

Utah, medical mediation board members are shielded from liability by an

immunity statute except in the event the mediator acted in bad faith, with

malicious intent, or exhibited willful disregard for rights, safety, or property of

another.

223

In Iowa, a narrow mediator immunity statute prevented a party from

bringing a negligence action against a Farm Mediation Service member where

it was alleged that improper notice of the mediation was given denying the

parties a fair opportunity to participate in foreclosure proceedings on their

agricultural property.

224

The complaint was dismissed for failure to state a

claim due to the Iowa statute limiting farm mediation staff liability to actions

in “bad faith, with malicious purpose, or in a manner exhibiting willful and

wanton disregard of human rights, safety, or property.”

225

Like most immunity laws, the Arizona, Colorado, Utah, Illinois and Iowa

statutes mentioned make an exception for reckless, willful misconduct.

226

the contrary, under California law for international commercial disputes the

mediator is expressly not held liable “in an action for damages resulting from

any act or omission in the performance of his or her role,” with no such

exception given.

227

In addition to statutory protections, some courts protect mediators through

the common law absolute quasi-judicial immunity doctrine.

228

In Florida, any

court-appointed mediator is granted judicial immunity “in the same manner

and to the same extent as a judge.”

229

A California court extended absolute

quasi-judicial immunity to a psychologist who acted as a neutral third-party

mediator in a child custody and abuse case.

230

The court noted the need for

alternative dispute resolution techniques to free-up clogged court schedules.

231

It stated that the job of a mediator is not as an advocate; rather it “involves

222. COLO. REV. STAT. § 13-22-305 (1997).

223. U

TAH CODE ANN. § 78-14-15 (1996) (governing medical malpractice mediation boards);

225 I

LL. COMP. STAT. 100/4 (West 1998) (mediation committee members for podiatric medical

boards are exempt from civil liability damages except for willful or wanton misconduct).

224. Postma v. First Fed. Sav. & Loan of Sioux City, 74 F.3d 160 (8th Cir. 1996).

225. Id. See also I

OWA CODE § 13.16 (1995).

226. See A

RIZ. REV. STAT. § 12-2238; COLO. REV. STAT. § 13-22-305; UTAH CODE ANN. §

78-14-15; 225 I

LL. COMP. STAT. 100/4; IOWA CODE § 13.16.

227. C

AL. CIV. PROC. CODE. § 1297.432 (West 1982).

228. See Chaykin, supra note 207, at 52-54 (discussing judicial immunity for mediators). See

also Wagshal v. Foster, 1993 No. 92-2072 WL 86499 (D.D.C. Feb. 5, 1993). The Wagshal court

stated that mediators “who are directly involved in ADR programs with express authority from

the court may invoke the same protection” as the court. Id. at *2.

229. F

L. STAT. ANN § 44.107 (West 1997).

230. Howard v. Drapkin, 222 Cal. App. 3d 843, 848 (2nd Dist. 1990).

231. Id. at 857.

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impartiality and neutrality, as does that of a judge . . . hence, there should be

entitlement to the same immunity given others who function as neutrals in an

attempt to resolve disputes.”

232

The court therefore held that “absolute quasi-

judicial immunity is properly extended to these neutral third-parties for their

conduct in performing dispute resolution services which are connected to the

judicial process and involve . . . the arbitration, mediation, conciliation,

evaluation or other similar resolution of pending disputes.”

233

The many statutes and judicial doctrines that grant immunity to mediators

have led to the criticism that broad mediator immunity acts to “shield ‘bad’

mediator opinions” and creates a lack of professional accountability by

mediators.

234

Some have contended that the common law provides important

protection for mediating parties and additional immunity legislation will not

aid the quality of mediation as a whole.

235

IV.

CRITICAL ANALYSIS: WILL THE DRAFT ACT WORK?

It is clear that the excessive regulation of mediation, over 2000 mediation

related statutes,

236

is confusing and unnecessary. Therefore, it is difficult to

argue against any attempt at simplification and unification. However, the

process of simplifying and unifying mediation regulation is complex and

warrants a detailed look at exactly what it is that a uniform act should regulate

and how it should be done.

The Draft Act purports to regulate all mediation except the very simplest

form where a mutual acquaintance aids two disputing persons in resolving an

argument with no formalities (and likely without even the knowledge that a

“mediation” is taking place).

237

However, if the disputing parties enter into a

written or electronically recorded agreement to have the mutual acquaintance

aid in resolution of their dispute, then the Draft Act would apply.

238

It also

purports to apply where disputing parties seek the aid of someone who holds

themselves out to be a mediator by trade.

239

In such cases, the mediator is very

likely to require a mediation agreement prior to offering services.

240

In both of these situations, the agreement entered into is voluntary and

expresses what the parties intend to be the goals and procedures of the

mediation sessions. The contract could be comprehensive and cover issues

such as confidentiality and attorney presence or it could merely state that the

232. Id. at 860.

233. Id.

234. Kovach & Love, supra note 22, at 104.

235. See Chaykin, supra note 207.

236. R

OGERS & MCEWEN, supra note 5, § 13.01.

237. See supra text accompanying notes 100-04.

238. See Draft Mar. 2000, supra note 1, § 3 (definitions).

239. See id.

240. See Devine, supra note 162, at 192.

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parties have agreed that the mediator is their choice to aid in resolving their

dispute. Either way, the contract reflects the voluntary nature of the process.

241

The need for regulation when a contractual relationship governs seems to

be superfluous and unnecessary. Contracting parties may not be aware that in

addition to the contract entered into, regulations govern their mediation

agreement. If anything, this would add confusion to parties attempting to seek

enforcement of the contract or damages for breach of it. Further, as argued by

many, the business world, supply and demand, and the traditional aspects of

contract and tort law are likely sufficient to ensure that the parties to a

contractual mediation receive fair and satisfying services.

242

Few states have attempted to regulate private mediation.

243

Therefore, if

the goal of the Draft Act is to “replace the hundreds of pages of complex and

often conflicting statutes across the country with a few short pages of simple,

accessible, and helpful rules,”

244

as the drafters contend, then the Draft Act

goes too far. Regulating the private use of mediation will likely not

“enhance . . . the expanded use of mediation”

245

as hoped, but will interfere

with a private contractual process that has inherent protections.

The problem can be easily fixed by altering the Draft Act’s definitions of

“disputant”

246

and “mediator”

247

as follows (with suggested deletions in

brackets):

“Disputant” means a person who participates in mediation and:

(1) has an interest in the outcome of the dispute or whose agreement is

necessary to resolve the dispute, and

(2) is asked by a court, government entity, or mediator to appear for

mediation [or entered an agreement to mediate that is evidenced by a

record].

“Mediator” means an impartial individual of any profession or background,

who is appointed by a court or government entity [or engaged by disputants

through an agreement evidenced by a record].

241. See Stulberg, Theory and Practice, supra note 76, at 88-89 (stating that “the mediation

process is non-compulsory . . . [therefore], if the parties do not want to negotiate, the triggering

mechanism for the entry of the mediator is absent”).

242. See Chaykin, supra note 207, at 52-54.

243. See supra text accompanying notes 105-07. But see A

RIZ. REV. STAT. § 12-2238 (1994)

(regulating mediation where “[b]efore or after the filing of a complaint, mediation may occur

pursuant to law, a court order or a voluntary decision of the parties”).

244. Reuben & Rogers, supra note 1, at 18.

245. See Getty et al., supra note 90 (stating that the goal of the uniform mediation project is to

“enhance, rather than interfere with, the expanded use of mediation and contribute to improving

its effectiveness”).

246. See Draft Mar. 2000, supra note 1, § 3(a).

247. Id. § 3(d).

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1147

The deletion of any reference to voluntary mediation agreements free from

court order or referral would remove the private mediation context from the

umbrella of the Draft Act. With these small changes, the Draft Act would

more closely mirror the dispute contexts generally regulated by the states and

would therefore advance the goals of clarifying and simplifying existing

mediation law.

248

In addition to private mediation, many parties also find themselves

engaged in mediation due to court referral or court order.

249

In such cases, a

new dimension to the expectations of the parties may arise. The parties have

already chosen the litigation process, but by virtue of the aspects of their

dispute, it was referred or ordered to mediation in an attempt to be resolved by

a mutual agreement rather than a court’s decision.

250

When a mediation

referral or order occurs, it appears that the court has an inherent duty to ensure

that the time and efforts of the parties are not wholly in vain.

251

For this

reason, certain procedural guidelines seem necessary and prudent.

In practice, court-connected mediation is the context for which nearly all

existing state regulation applies.

252

If the Draft Act provides the states a very

basic structure and narrowly applicable guidelines as to court-connected

mediation procedures, it will be a useful tool. States that already have

mediation legislation can repeal superfluous provisions and refer to the

uniform law with supplementation for dispute-specific issues. States with

minimal mediation legislation will have a solid, organized base upon which to

build a concise body of law.

As can be seen by the discussion of various state laws in the previous

sections of this Comment, few states have left court-connected mediation

unregulated.

253

On the other end of the spectrum, states such as California

have hundreds of mediation statutes already in existence.

254

As an

accommodation to this wide variance, the mediation procedure provisions of

the Draft Act

255

are well chosen areas of regulation for court-connected

mediation. Disclosure and representation rights are areas already regulated by

the states

256

and would therefore benefit from uniformity. However, the states

248. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 1 (stating that the “guiding

purpose of the drafting effort was to provide a simple and clear statute that would serve the

interests of promoting the use, effectiveness, fairness and integrity of mediation . . .”).

249. See generally K

OVACH, supra note 21, at 48 (discussing mandatory referral).

250. Id. (noting that many states require courts to determine the appropriateness of a case for

mediation prior to making a referral).

251. See Devine, supra note 162, at 206 (discussing the implications of mandatory

mediation).

252. See supra text accompanying notes 105-07.

253. See Section III.

254. See R

OGERS & MCEWEN, supra note 5, app. B at 152-55.

255. See Draft Mar. 2000, supra note 1, § 9.

256. See supra text accompanying notes 145-204.

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also highly regulate immunity, but the issue is not addressed in the current

version of the Draft Act. Following, the disclosure, representation and

immunity provisions will be discussed in turn.

A. The Disclosure Provisions

The current version of the Draft Act requires disclosure of conflicts of

interest

257

and, upon request, disclosure of qualifications.

258

Comparing the

Draft Act to state disclosure laws reveals three issues: (1) the burden for

qualification disclosure is on the parties; (2) the parties have no guide as to

what qualifies a mediator; and (3) relevant conflicts of interest are not

enumerated.

The first issue pertains to the disclosure of mediator qualifications. Where

the parties contract freely to have a particular mediator aid in resolution of

their dispute without court intervention, the inherent nature of the contract is

that the parties believe the mediator is qualified.

259

Before agreeing, the

parties have every opportunity to determine the mediator’s qualifications, and

if disclosure is withheld, the parties are free to refrain from entering into the

contract. However, where the mediator is court-appointed, unknowing and

unrepresented parties may assume that the mediator is qualified or would not

have been appointed for their dispute.

260

Therefore, the disclosure provision is

less pertinent in a private mediation context than one involving a court-

connected mediator.

Where the Draft Act’s disclosure provision does apply, as written, it places

the burden of requesting disclosure on the parties.

261

The few states that

require disclosure of qualifications put the burden on the mediator rather than

the parties.

262

For instance, Louisiana requires that a mediator provide

information regarding professional qualifications and fees upon receiving

notice of appointment as a mediator.

263

Requiring disclosure upon appointment

places the mediator’s qualifications immediately out in the open for the parties’

review, and there can be no surprises for a party who did not know or did not

think of asking until a problem arose or confidence fell.

257. Draft Mar. 2000, supra note 1, § 9(a).

258. Id. § 9(b).

259. See Devine, supra note 162, at 192 (discussing the process of mediation and the

importance of an introduction and agreement to mediate when the mediation is entered into

voluntarily).

260. See generally Mandatory Mediation, supra note 105, at 1101 (stating that quality control

is required in the context of mandatory mediation). See also Harges, supra note 55, at 714

(acknowledging that “states have a duty to ensure the quality of the individuals who serve as

mediators”).

261. See Draft Mar. 2000, supra note 1, § 9(b).

262. See supra text accompanying notes 159-61.

263. L

A. REV. STAT. ANN. § 9:4107(B) (West Supp. 1999).

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1149

Although the Draft Act properly requires disclosure of qualifications for

court-connected mediators, placing the burden to request such disclosure on

the parties is not justified. Disclosure by the mediator early in the mediation

process would aid in developing trust and the parties would more likely feel

confident from the beginning that the mediator will be able to aid them in

resolving their disputes.

264

The potential damage that could be caused by

unqualified mediators, time delays and increased costs for example, would be

avoided by early, mandatory disclosure.

The second issue is the Draft Act’s failure to address what education and

experience ensure a qualified mediator.

265

The issue is quite controversial and

very complex when the numerous and varied types of disputes are taken into

account.

266

In addition, there is no convincing evidence as to what makes a

good mediator.

267

Therefore, the drafters are likely correct in avoiding an

identification of strict standards. Moreover, states may be reluctant to adopt a

uniform act that drastically increases or decreases the minimum qualifications

of mediators, and further, the mediation profession as a whole may be uprooted

if across the board standards were suddenly and indiscriminately enacted.

Nonetheless, among states with qualification standards there is consensus that

some form of mediation or dispute resolution training increases mediator

competency.

268

Further, states generally agree that some experience or

education in the field of the dispute is necessary.

269

Most domestic disputes,

for example, require some knowledge of social work, psychology, or

counseling techniques.

270

Some states have responded with mediation

qualification standards requiring relative education or experience.

271

The problem posed by the Draft Act’s lack of standards is that with no

standard for comparison, even when the parties request disclosure, there is no

way for the parties to know if the qualifications are sufficient. Therefore, it

could be suggested that some reference to minimum standards should be

included in the Draft Act. However, since the goal of the Draft Act is to only

regulate those areas common to all mediation,

272

it would be more beneficial

for the Draft Act to remain silent on the issue of qualifications, as it presently

264. See generally Guthrie & Levin, supra note 24 (discussing party satisfaction).

265. See Harges, supra note 55, at 687; Draft Mar. 2000, supra note 1, § 9(b).

266. See Harges, supra note 55, at 687 (discussing the controversy of mediator

qualifications).

267. Id.

268. See supra note 179 and accompanying text.

269. Id.

270. See Harges, supra note 55 (discussing the rise of mental health professionals as

mediators to domestic disputes).

271. Id.

272. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 1.

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does, and allow the states to establish subject-specific qualifications when

necessary or prudent.

Third is the issue of disclosure of conflicts of interest. Unlike

qualifications disclosure, conflicts of interest disclosure is more heavily

regulated among the states, and the burden to disclose is normally on the

mediator.

273

State regulations go so far as to require a mediator to withdraw

from the mediation if a conflict of interest either makes the mediator believe

that impartiality is impossible or causes a party to request withdrawal.

274

The initial version of the Draft Act did not require disclosure of conflicts

of interest unless, or until, a party or party representative requested

disclosure.

275

Placing the burden on the parties to request disclosure of

conflicts of interests, as the initial version of the Draft Act did, may have led to

disruptions and a lack of confidence in the mediation process when a party

gained knowledge part way through the process that the mediator had a

conflict of interest. Therefore, the revisions in the current version of the Draft

Act requiring automatic disclosure of a potential conflict of interest, without a

specific request by a party,

276

was a positive change.

However, the remaining problem is that the Draft Act does not list

potential conflicts of interest that must be expressly denied or disclosed by

mediators. An improvement, following the guide of the Model Standards of

Conduct for Mediators,

277

would be to outline specifically what information

must be disclosed and require the mediator to expressly state whether the

identified conflicts exist or not.

B. Ensuring the Right to Representation

The right to representation provision

278

is the sole mediation procedure

issue in which the Draft Act clearly answers a split in opinion among the

states. Although several states exclude attorneys at domestic mediations or

leave the decision to the discretion of the mediator,

279

the Draft Act provision

would provide a uniform right ensuring that the parties have control over their

representation regardless of the type of dispute.

There may be criticism that this provision is self-serving for the legal

profession; however, it will provide many benefits for mediating parties.

Primarily, if a party feels more confident and is more likely to participate in

mediation if counsel is welcomed, then the goals of mediation are advanced.

280

273. See supra text accompanying notes 146-57.

274. See, e.g., S.D.

CODIFIED LAWS § 25-4-58.2 (Michie 1999).

275. Draft June 1999, supra note 1, § 4(a).

276. See Draft Mar. 2000, supra note 1, § 9(a).

277. See Feerick, supra note 10, at 480.

278. Draft Mar. 2000, supra note 1, § 9(c).

279. See supra text accompanying notes 200-03.

280. Sternlight, supra note 189, at 345.

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Counsel may be able to advise a mediating party as to the appropriate

qualifications of a mediator and whether a perceived conflict of interest is an

issue. Counsel may also even the bargaining power between two parties, such

as divorcing spouses, where one party naturally exerts influence over the other.

In addition, counsel will be better equipped than an unrepresented party to

evaluate an agreement reached through mediation if present at the

negotiations.

281

Potential problems may arise when one party is represented and the other

is not due to financial constraints. In that instance, the bargaining power may

actually be unbalanced due to the presence of counsel for only one side. The

Draft Act’s broad language upholding the right of non-legal representation

282

may mitigate the problem. Having a professional counselor, well-trusted

friend, or other non-legal advocate at the mediation sessions will allow a party

without legal representation to build confidence and benefit from a second

opinion. Therefore, the right to representation provision appears to be a step in

the right direction for quality mediation.

Again, the distinction between private mediation and court-connected

mediation can be raised. In a private mediation, if the parties disagree as to

whether attorneys should be present or not, the consequence is that the

mediation will not go forward. In a court-connected mediation, however, the

consequence may be either an unsuccessful mediation because one party

refuses to agree to a settlement or an unfair settlement because the parties were

not fully informed prior to agreement. In both cases, ensuring a party’s right to

representation mitigates the effects of wasted time or an unfair settlement. If

the parties chose litigation first but were referred or ordered to mediation, a

disallowance of representation would be inconsistent with the parties’ initial

choice to be represented by counsel.

C. The Lack of Limits on Mediator Liability

The current version of the Draft Act fails to address mediator liability and

immunity issues. Previous versions allowed common law judicial immunity

for court-connected mediators.

283

In addition, the initial versions denied all

immunity including exculpatory agreements and statutory immunity laws for

private mediators who were therefore held fully responsible to the extent that

civil liability allows.

284

Unlike the other provisions of the Draft Act which put

281. See id. at 345 (stating that “lawyers often have an important role to play in protecting

their clients during the course of a mediation and ensuring that any agreement that is reached is

fair to the client or otherwise appropriate”).

282. See Draft Jan. 2000, supra note 1, § 3(c).

283. See id. § 3(b).

284. See Draft Jan. 2000, supra note 1, § 3(b).

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private mediators and court-connected mediators on similar ground, the deleted

immunity provisions made a prominent distinction.

285

In their protection of court-connected mediators, the previous versions of

the Draft Act appeared to overlook the fact that many states provide for

statutory immunity in addition to common law judicial immunity.

286

Many

state statutes grant full immunity to court-connected mediators with the

exception of willful, wanton or reckless conduct.

287

Statutory immunity grants

more certainty to mediators and mediating parties than common law immunity

insofar as there is no question as to whether it applies once enumerated in a

statute. It is claimed that court-connected mediators are more likely to be

accountable for their actions due to court supervision;

288

if this was the

justification for upholding common law immunity for court-connected

mediators, then the denial of statutory immunity would have been

unwarranted.

For private mediators, the marketplace and contract or tort laws are

necessary checks on mediator accountability due to the absence of similar

supervision and guidance provided in a court-connected context.

289

The

potential for claims of false advertising, breach of contract, fraud, invasion of

privacy, defamation, and malpractice, holding mediators liable for their

conduct, serve as necessary assurances of quality mediation.

290

Therefore, the

prohibition on immunity for private mediators in the previous versions of the

Draft Act was proper. However, because many states prohibit the use of

exculpatory agreements in most contexts for public policy reasons

291

express prohibition on the use of such agreements should have been included

in the Draft Act. Exculpatory agreements eliminate the check that tort and

contract liability supply and would therefore act conversely to the goal of

quality mediation.

Leaving the liability issue completely unaddressed, as the current version

of the Draft Act does, contradicts the attempt to unify mediation regulation

among the states. As was discussed previously, several states have mediator

immunity laws and the variance in scope and application is great. Fine-tuning

the provision to recognize the existing statutory as well as common law

immunity for court-connected mediators and expressly prohibiting immunity

285. Compare id., with Draft Jan. 2000, supra note 1, §§ 3(a), 3(c).

286. See A

RIZ. REV. STAT. § 12-2238; UTAH CODE ANN. § 78-14-15 (b) (1994); 225 ILL.

COMP. STAT. ANN. 100/4 (West 1998); and supra text accompanying notes 219-27.

287. See supra text accompanying notes 219-27.

288. See Draft Dec. 1999, Reporter’s Notes, supra note 1, § 4(c).

289. See supra text accompanying notes 213-18.

290. See Chaykin, supra note 207, at 51-52.

291. See Pendleton, supra note 207 (discussing Wisconsin’s general prohibition against

exculpatory agreements).

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2000] THE DRAFT UNIFORM MEDIATION ACT IN CONTEXT 1153

for private mediators may be a greater step towards uniformity than

eliminating the provision in its entirety.

IV.

CONCLUSION

The uniform mediation project is an effort to be commended. It evolved

from the institutionalization of mediation in the mid-1900s and the resulting

abundance of state regulation that exists today.

292

It is apparent that over 2000

mediation related statutes

293

are too many for a process praised for simplicity

and informality. Any attempt to reduce the complexity should be greatly

supported.

However, the drafting of a uniform act for mediation is a delicate process.

A focus on the proper contexts to which a uniform act should apply is

imperative. This Comment has presented the argument that because private

mediation is based on a voluntary agreement to mediate and is sufficiently

protected by contract and tort law, the Draft Act need not regulate arenas of

mediation beyond court-connected mediation. This position is further

advanced by the fact that most state statutes are limited to court-connected

mediation scenarios.

In the context of court referred or court ordered mediation, the Draft Act

takes positive steps to ensure a quality process by providing for mediator

disclosure and the right to representation.

294

The disclosure provision makes a

good effort at reducing conflicts of interest and providing for qualified

mediators; however, it may be more effective if the burden for disclosure is

shifted to the mediator rather than the parties. The right to representation

provision properly ensures that an attorney or other representative may

accompany mediating parties if desired. Finally, altering rather than

eliminating the immunity provision in order to recognize the existing state

statutes providing court-connected mediator immunity should be considered.

The task of commencing and culminating the Draft Act project was and

continues to be an awesome one. Clearing the clutter of mediation regulation

will require more than the predicted finalization of the Draft Act by the

NCCUSL and ABA in February 2001. The real test of its success in

eliminating the plethora of mediation regulation will only be realized when the

Draft Act is forwarded to the states for adoption. Until then mediation

regulation will remain in its unorganized, overlapping, incoherent and

incomplete state.

RIDGET GENTEMAN HOY

292. See Section II.

293. R

OGERS & MCEWEN, supra note 5, § 13:01.

294. See Draft Mar. 2000, supra note 1, § 9.

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

1154 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 44:1121