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Uniform Mediation Act
Summary
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Modifications of the Uniform Mediation Act by States
that have formally Adopted the UMA as of July 2007
edits and updates
should be forwarded to Chuck Doran at Mediation Works Incorporated
cdoran@mwi.org
additional
information and updates can be found at
www.mwi.org/uma
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States Adopting the UMA
formally
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District of Columbia, Illinois, Iowa, Nebraska, New Jersey, Ohio, Utah,
Vermont, Washington (9) |
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Statute # by State |
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District of Columbia
(D.C.Code
§§ 16-4201 to
16-4213)
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Illinois (710
ILCS 35/11 to
35/99)
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Iowa (I.C.A. §§
679C.101 to
679C.115)
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Nebraska (Neb.
Rev. Stat. §§ 25-2930 to
25-2942)
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New Jersey (N.J.S.A.
2A:23C-1 to
2A:23C-13)
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Ohio (Ohio
R.C. §§ 2710.01 to
2710.10)
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Utah (Utah
Code Ann. 78-31c-101 to
78-31c-114)
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Vermont (Vt.
Stat. Ann. tit. 12, §§ 5711 to
5723)
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Washington (West's
RCWA 7.07.010 to
7.07.904)
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Section (§)
Number and Title
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Original UMA Text
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Individual State Modifications |
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§ 1 (Title)
Modifications |
SECTION 1. TITLE.
This [Act] may be cited as the Uniform Mediation Act.
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District of Columbia – Mediation; Uniform Act.
Illinois – Uniform Mediation Act
Iowa – Uniform Mediation Act
Nebraska – Uniform Mediation Act
New Jersey – Uniform Mediation Act
Ohio – Uniform Mediation Act
Utah – Utah Uniform Mediation Act
Vermont – Vermont Uniform Mediation Act
Washington – Uniform Mediation Act
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§ 2 (Definitions)
Modifications |
SECTION 2. DEFINITIONS. In this [Act]:
(1) “Mediation” means a process in which a mediator
facilitates communication and negotiation between parties to assist them
in reaching a voluntary agreement regarding their dispute.
(2) “Mediation communication” means a statement, whether
oral or in a record or verbal or nonverbal, that occurs during a
mediation or is made for purposes of considering, conducting,
participating in, initiating, continuing, or reconvening a mediation or
retaining a mediator.
(3) “Mediator” means an individual who conducts a
mediation.
(4) “Nonparty participant” means a person, other than a
party or mediator, that participates in a mediation.
(5) “Mediation party” means a person that participates in
a mediation and whose agreement is necessary to resolve the dispute.
(6) “Person” means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, government; governmental subdivision,
agency, or instrumentality; public corporation, or any other legal or
commercial entity.
(7) “Proceeding” means:
(A) a judicial, administrative, arbitral, or other
adjudicative process, including related pre-hearing and post-hearing
motions, conferences, and discovery; or
(B) a legislative hearing or similar process.
(8) “Record” means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium and
is retrievable in perceivable form.
(9) “Sign” means:
(A) to execute or adopt a tangible symbol with the present
intent to authenticate a record; or
(B) to attach or logically associate an electronic symbol,
sound, or process to or with a record with the present intent to
authenticate a record.
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IOWA
In the
introductory paragraph, adds ", unless the context otherwise requires"
at the end thereof.
NEW
JERSEY
Subd. (2)
provides:
"
'Mediation communication' means a statement, whether verbal or nonverbal
or in a record, that occurs during a mediation or is made for purposes
of considering, conducting, participating in, initiating, continuing, or
reconvening a mediation or retaining a mediator. A mediation
communication shall not be deemed to be a public record under P.L.1963,
c. 73 (C.47:1A-1 et seq.) as amended and supplemented by P.L.2001, c.
404 (C.47:1A-5 et seq.)."
OHIO
Subd. (6)
provides:
" 'Person'
means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture,
agency or instrumentality of the state or of any political subdivision
of the state, public corporation, or any other legal or commercial
entity."
UTAH
In subd.
(2), inserts "conduct or" preceding "a statement".
In subd.
(3), inserts "is neutral and" preceding "conducts a mediation".
VERMONT
In subd.
(5), omits "Mediation" preceding "party".
In subd.
(8), inserts "except in the phrase 'record of proceeding,' "preceding
"means information".
Adds a
definition, which provides:
" 'Court'
means a court of competent jurisdiction in Vermont."
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§ 3 (Scope)
Modifications |
SECTION 3. SCOPE.
(a) Except as otherwise provided in subsection (b) or (c),
this [Act] applies to a mediation in which:
(1) the mediation parties are required to mediate by
statute or court or administrative agency rule or referred to mediation
by a court, administrative agency, or arbitrator;
(2) the mediation parties and the mediator agree to mediate
in a record that demonstrates an expectation that mediation
communications will be privileged against disclosure; or
(3) the mediation parties use as a mediator an individual
who holds himself or herself out as a mediator or the mediation is
provided by a person that holds itself out as providing mediation.
(b) The [Act] does not apply to a mediation:
(1) relating to the establishment, negotiation,
administration, or termination of a collective bargaining relationship;
(2) relating to a dispute that is pending under or is part
of the processes established by a collective bargaining agreement,
except that the [Act] applies to a mediation arising out of a dispute
that has been filed with an administrative agency or court;
(3) conducted by a judge who might make a ruling on the
case; or
(4) conducted under the auspices of:
(A) a primary or secondary school if all the parties are
students or
(B) a correctional institution for youths if all the
parties are residents of that institution.
(c) If the parties agree in advance in a signed record, or
a record of proceeding reflects agreement by the parties, that all or
part of a mediation is not privileged, the privileges under Sections 4
through 6 do not apply to the mediation or part agreed upon. However,
Sections 4 through 6 apply to a mediation communication made by a person
that has not received actual notice of the agreement before the
communication is made.
Legislative Note: To the extent that the Act applies to
mediations conducted under the authority of a State’s courts, State
judiciaries should consider enacting conforming court rules. |
DISTRICT OF COLUMBIA
In subsecs.
(b)(4)(A) and (b)(4)(B), inserts "mediation" preceding "parties".
In subsec.
(b)(4), adds a paragraph [designated (C) in the District of Columbia
act], which provides:
"(C) The
Office of the Attorney General for the District of Columbia or the
Mayor, if the mediation arises from a consumer complaint under authority
of Chapter 39 of Title 28 of the District of Columbia Official Code, and
one of the mediation parties is the consumer complainant."
In subsec.
(c), inserts "mediation" preceding "parties agree in advance".
IOWA
In subsec.
(c), in the first sentence inserts "mediation" preceding "parties"
twice.
NEBRASKA
In subsec.
(b)(4)(B), inserts "and the mediator" following "if all the parties".
NEW
JERSEY
In subsec.
(a)(1), substitutes "by statute, court rule or" for "by statute or court
or".
In subsec.
(b)(1), adds "or to any mediation conducted by the Public Employment
Relations Commission or the State Board of Mediation" following
"bargaining relationship".
In subsec.
(b)(2), substitutes "filed with a court or an administrative agency
other than the Public Employment Relations Commission or the State Board
of Mediation" for "filed with an administrative agency or court".
In subsec.
(b)(4)(B), substitutes "a juvenile detention facility or shelter" for "a
correctional institution for youths".
Subsec. (c)
provides:
"If the
parties agree in advance in a signed record, or a record of proceeding
so reflects, that all or part of a mediation is not privileged, the
privileges under sections 4 through 6 of P.L.2004, c.157 (C. 2A:23C-4
through 2A:23C-6) shall not apply to the mediation or part agreed upon.
Sections 4 through 6 of P.L.2004, c.157 (C. 2A:23C-4 through 2A:23C-6)
shall apply to a mediation communication made by a person who has not
received actual notice of the agreement before the communication is
made."
OHIO
In subsec.
(b)(3), inserts "or magistrate" following "judge".
UTAH
In subsec.
(a)(3), substitutes "an entity that holds itself out" for "a person that
holds itself out".
VERMONT
In subsecs.
(a)(1) and (a)(2), omits "mediation" preceding "parties".
Subsec.
(a)(3) provides:
"the
parties utilize as a mediator a person that holds himself or herself out
as providing mediation services."
In subsec.
(b)(2), substitutes "filed with a court or with a public agency other
than the federal mediation and conciliation service or the Vermont labor
relations board" for "filed with an administration agency or court".
Subsec.
(b)(4) provides:
"conducted
under the auspices of a primary or secondary school where all the
parties are students, or under the auspices of a correctional
institution for youths where all the parties are residents of that
institution; or"
Subsec. (c)
provides:
"If the
parties agree in advance that all or part of a mediation is not
privileged, the privileges under sections 5715 through 5717 of this
title do not apply to the mediation or part agreed upon. The agreement
must be in a signed record or reflected in the record of a proceeding.
However, sections 5715 through 5717 of this title apply to a mediation
communication made by a person who has not received actual notice of the
agreement before the communication is made."
WASHINGTON
Omits
subsecs. (b)(1) and (b)(2).
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§ 4 (Privilege Against
Disclosure; Admissibility; Discovery)
Modifications |
SECTION 4. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY;
DISCOVERY.
(a) Except as otherwise provided in Section 6, a
mediation communication is privileged as provided in subsection (b) and
is not subject to discovery or admissible in evidence in a proceeding
unless waived or precluded as provided by Section 5.
(b) In a proceeding, the following privileges apply:
(1) A mediation party may refuse to disclose, and may
prevent any other person from disclosing, a mediation communication.
(2) A mediator may refuse to disclose a mediation
communication, and may prevent any other person from disclosing a
mediation communication of the mediator.
(3) A nonparty participant may refuse to disclose, and may
prevent any other person from disclosing, a mediation communication of
the nonparty participant.
(c) Evidence or information that is otherwise admissible
or subject to discovery does not become inadmissible or protected from
discovery solely by reason of its disclosure or use in a mediation.
Legislative Note: The Act does not supersede existing
state statutes that make mediators incompetent to testify, or that
provide for costs and attorney fees to mediators who are wrongfully
subpoenaed. See, e.g., Cal. Evid. Code Section 703.5 (West 1994).
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VERMONT
Subsec. (a)
provides:
"A
mediation communication is privileged and is not subject to discovery or
admissible in evidence in a proceeding."
In subsec.
(b)(1), omits "mediation" preceding "party".
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§ 5 (Waiver and
Preclusion of Privilege)
Modifications |
SECTION 5. WAIVER AND PRECLUSION OF PRIVILEGE.
(a) A privilege under Section 4 may be waived in a record
or orally during a proceeding if it is expressly waived by all parties
to the mediation and:
(1) in the case of the privilege of a mediator, it is
expressly waived by the mediator; and
(2) in the case of the privilege of a nonparty participant,
it is expressly waived by the nonparty participant.
(b) A person that discloses or makes a representation
about a mediation communication which prejudices another person in a
proceeding is precluded from asserting a privilege under Section 4, but
only to the extent necessary for the person prejudiced to respond to the
representation or disclosure.
(c) A person that intentionally uses a mediation to plan,
attempt to commit or commit a crime, or to conceal an ongoing crime or
ongoing criminal activity is precluded from asserting a privilege under
Section 4.
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IOWA
In subsec.
(a), in the introductory paragraph, inserts "mediation" preceding
"parties". |
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§ 6 (Exceptions to
Privileges)
Modifications |
SECTION 6. EXCEPTIONS TO PRIVILEGE.
(a) There is no privilege under Section 4 for a mediation
communication that is:
(1) in an agreement evidenced by a record signed by all
parties to the agreement;
(2) available to the public under [insert statutory
reference to open records act] or made during a session of a mediation
which is open, or is required by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily
injury or commit a crime of violence;
(4) intentionally used to plan a crime, attempt to commit
or commit a crime, or to conceal an ongoing crime or ongoing criminal
activity;
(5) sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against a
mediator;
(6) except as otherwise provided in subsection (c), sought
or offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against a mediation party, nonparty
participant, or representative of a party based on conduct occurring
during a mediation; or
(7) sought or offered to prove or disprove abuse, neglect,
abandonment, or exploitation in a proceeding in which a child or adult
protective services agency is a party, unless the
[Alternative A: [State to insert, for example, child or
adult protection] case is referred by a court to mediation and a public
agency participates.]
[Alternative B: public agency participates in the [State to
insert, for example, child or adult protection] mediation].
(b) There is no privilege under Section 4 if a court,
administrative agency, or arbitrator finds, after a hearing in camera,
that the party seeking discovery or the proponent of the evidence has
shown that the evidence is not otherwise available, that there is a need
for the evidence that substantially outweighs the interest in protecting
confidentiality, and that the mediation communication is sought or
offered in:
(1) a court proceeding involving a felony [or misdemeanor];
or
(2) except as otherwise provided in subsection (c), a
proceeding to prove a claim to rescind or reform or a defense to avoid
liability on a contract arising out of the mediation.
(c) A mediator may not be compelled to provide evidence of
a mediation communication referred to in subsection (a)(6) or (b)(2).
(d) If a mediation communication is not privileged under
subsection (a) or (b), only the portion of the communication necessary
for the application of the exception from nondisclosure may be
admitted. Admission of evidence under subsection (a) or (b) does not
render the evidence, or any other mediation communication, discoverable
or admissible for any other purpose.
Legislative Note: If the enacting state does not have an
open records act, the following language in paragraph (2) of subsection
(a) needs to be deleted: “available to the public under [insert
statutory reference to open records act] or". |
DISTRICT OF COLUMBIA
In subsec.
(a)(7), uses Alternative A.
ILLINOIS
In subsec.
(a)(7), uses Alternative A.
IOWA
Subsec. (a)
[designated 1 in the Iowa act] provides:
"1. No
privilege exists under section 679C.104 for a mediation communication
that involves any of the following:
"a. An
agreement evidenced by a record signed by all mediation parties to the
agreement.
"b. A
communication that is available to the public under chapter 22 or made
during a session of a mediation which is open, or is required by law to
be open, to the public.
"c. A
threat or statement of a plan to inflict bodily injury or commit a crime
of violence.
"d. A plan
to commit or attempt to commit a crime, the commission of a crime, or
activity to conceal an ongoing crime or ongoing criminal activity.
"e. A
communication that is sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against a
mediator.
"f. Except
as otherwise provided in subsection 3, a communication that is sought or
offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against a mediation party, nonparty
participant, or representative of a mediation party based on conduct
occurring during a mediation.
"g. A
communication that is sought or offered to prove or disprove abuse,
neglect, abandonment, or exploitation in a proceeding in which a child
or adult protective services agency is a party, unless the child or
adult protection case is referred by a court to mediation and a public
agency participates."
NEBRASKA
Subsec.
(a)(7) provides:
"sought or
offered to prove or disprove abuse, neglect, abandonment, or
exploitation in a proceeding in which a child or adult protective
services agency is a party."
NEW
JERSEY
In subsec.
(a)(2), omits "available to the public under [insert statutory reference
to open records act] or" preceding "made during a session".
In subsec.
(a)(3), omits "of violence" following "commit a crime".
In subsec.
(a)(4), omits "or commit" following "attempt to commit".
In subsec.
(a)(5), omits "of professional misconduct or malpractice" following
"claim or complaint", and adds "arising out of a mediation" following
"mediator".
Subsec.
(a)(7) now provides:
"sought or
offered to prove or disprove child abuse or neglect in a proceeding in
which the Division of Youth and Family Services in the Department of
Human Services is a party, unless the Division of Youth and Family
Services participates in the mediation."
Subsec.
(b)(1) provides:
"a court
proceeding involving a crime as defined in the 'New Jersey Code of
Criminal Justice,'
N.J.S. 2C:1-1 et seq.; or"
OHIO
Section
provides:
"(A) There
is no privilege under section 2710.03 of the Revised Code for a
mediation communication to which any of the following applies:
"(1) The
mediation communication is contained in a written agreement evidenced by
a record signed by all parties to the agreement.
"(2) The
mediation communication is available to the public under section 149.43
of the Revised Code or made during a session of a mediation that is
open, or is required by law to be open, to the public;
"(3) The
mediation communication is an imminent threat or statement of a plan to
inflict bodily injury or commit a crime of violence.
"(4) The
mediation communication is intentionally used to plan, attempt to
commit, or commit a crime or to conceal an ongoing crime or ongoing
criminal activity.
"(5) The
mediation communication is sought or offered to prove or disprove a
claim or complaint of professional misconduct or malpractice filed
against a mediator.
"(6) Except
as otherwise provided in division (C) of this section, the mediation
communication is sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against a
mediation party, nonparty participant, or representative of a party
based on conduct occurring during a mediation.
"(7) Except
as provided in
sections 2317.02 and
3109.052 of the Revised Code,
the mediation communication is sought or offered to prove or disprove
abuse, neglect, abandonment, or exploitation in a proceeding in which a
child or adult protective services agency is a party, unless the case is
referred by a court to mediation and a public agency participates.
"(8) The
mediation communication is required to be disclosed pursuant to section
2921.22 of the Revised Code.
"(9) The
mediation communication is sought in connection with or offered in any
criminal proceeding involving a felony, a delinquent child proceeding
based on what would be a felony if committed by an adult, or a
proceeding initiated by the state or a child protection agency in which
it is alleged that a child is an abused, neglected, or dependent child.
"(B) There
is no privilege under section 2710.03 of the Revised Code if a court,
administrative agency, or arbitrator finds, after a hearing in camera,
that the party seeking discovery or the proponent of the evidence has
shown that the evidence is not otherwise available, that the disclosure
is necessary in the particular case to prevent a manifest injustice, and
that the mediation communication is sought or offered in either of the
following:
"(1) A
court proceeding involving a misdemeanor;
"(2) Except
as otherwise provided in division (C) of this section, a proceeding to
prove a claim to rescind or reform or a defense to avoid liability on a
contract arising out of the mediation.
"(C) A
mediator may not be compelled to provide evidence of a mediation
communication referred to in division (A)(6) or (B)(2) of this section.
"(D) If a
mediation communication is not privileged under division (A) or (B) of
this section, only the portion of the communication necessary for the
application of the exception from nondisclosure may be admitted.
Admission of evidence under division (A) or (B) of this section does not
render the evidence, or any other mediation communication, discoverable
or admissible for any other purpose."
UTAH
Subsec.
(a)(7) provides:
"subject to
the reporting requirements in Section 62A-3-305 or 62A-4a-403."
VERMONT
Subsec.
(a)(5), (a)(6), and (a)(7) provide:
"(5) sought
or offered to prove or disprove abuse, neglect, abandonment, or
exploitation in a proceeding in which a child or adult protective
services agency is a party, but this exception does not apply where a
child or adult protection case is referred by a court to mediation and a
public agency participates in the mediation;"
"(6) sought
or offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against a mediator; or"
"(7) sought
or offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against a party, nonparty participant,
or representative of a party based on conduct occurring during a
mediation, except as otherwise provided in subsection (c) of this
section."
Subsec. (b)
provides:
"There is
no privilege under section 5715 of this title if a court, administrative
agency, or arbitration panel finds, after a hearing in camera, that the
party seeking discovery or the proponent of the evidence has shown that
the evidence is not otherwise available, that there is a need for the
evidence that substantially outweighs the interest in protecting
confidentiality, and that the mediation communication is sought or
offered in:
"(1) a
criminal proceeding in district court;
"(2) a
child protection proceeding under chapter 49 or 55 of Title 33;
"(3) a
protection proceeding involving a vulnerable adult under chapter 69 of
Title 33; or
"(4) a
proceeding to prove a claim to rescind or reform, or a defense to avoid
liability on, a contract arising out of the mediation, except as
otherwise provided in subsection (c) of this section."
WASHINGTON
Subsec.
(a)(2) provides:
"Made
during a session of a mediation which is open, or is required by law to
be open, to the public;"
Subsec.
(a)(7) provides:
"Sought or
offered to prove or disprove abuse, neglect, abandonment, or
exploitation in a proceeding in which a child or adult protective
services agency is a party, unless the public agency participates in the
child or adult protection mediation."
In subsec.
(b), in the introductory paragraph, omits ", administrative agency, or
arbitrator" preceding "finds".
In subsec.
(b)(1), inserts "criminal" preceding "court", and omits "[or
misdemeanor]".
Adds a
subsection [designated (5) in the Washington act], which provides:
"(5)
Records of mediation communications that are privileged under this
chapter are exempt from the requirements of chapter 42.56 RCW."
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§ 7 (Prohibited
mediators reports)
Modifications |
SECTION 7. PROHIBITED MEDIATOR REPORTS.
(a) Except as required in subsection (b), a mediator may
not make a report, assessment, evaluation, recommendation, finding, or
other communication regarding a mediation to a court, administrative
agency, or other authority that may make a ruling on the dispute that is
the subject of the mediation.
(b) A mediator may disclose:
(1) whether the mediation occurred or has terminated,
whether a settlement was reached, and attendance;
(2) a mediation communication as permitted under Section 6;
or
(3) a mediation communication evidencing abuse, neglect,
abandonment, or exploitation of an individual to a public agency
responsible for protecting individuals against such mistreatment.
(c) A communication made in violation of subsection (a)
may not be considered by a court, administrative agency, or arbitrator. |
DISTRICT OF COLUMBIA
In subsec.
(a), inserts "arbitrator," following "administrative agency,"
In subsec.
(c), omits "or" preceding "arbitrator", and adds ", or other authority
that may make a ruling on the dispute that is the subject of the
mediation" following "arbitrator".
IOWA
In subsec.
(a), substitutes "shall not make a report" for "may not make a report".
In subsec.
(c), substitutes "shall not be considered" for "may not be considered".
NEW
JERSEY
In subsec.
(a), inserts "oral or written" preceding "communication".
Omits
subsec. (b)(3).
OHIO
In subsec.
(a), inserts "department, agency, or officer of this state or its
political subdivisions" following "regarding a mediation to a court,".
In subsec.
(b)(3), substitutes "abuse, neglect, abandonment, or exploitation" for
"such mistreatment".
VERMONT
Combines
the provisions of this section and § 9 of the Official text in one
section of the Vermont act, which provides:
"§ 5718.
Mediator report; disclosure; background
(a) A
mediator may not make a report, assessment, evaluation, recommendation,
finding, or other communication regarding a mediation to a court,
agency, or other authority that may make a ruling on the dispute that is
the subject of the mediation, but a mediator may disclose:
"(1)
whether the case is not appropriate for mediation, whether the mediation
occurred or has terminated, whether a settlement was reached, and
attendance;
"(2) a
mediation communication as permitted under section 5717 of this title;
or
"(3) a
mediation communication evidencing abuse, neglect, abandonment, or
exploitation of a child or vulnerable adult to a public agency
responsible for protecting such individuals against such mistreatment.
"(b) A
communication made in violation of subsection (a) of this section may
not be considered by a court or other tribunal.
"(c)
Subsections (d), (e), (f), and (g) of this section do not apply to an
individual acting as a judge.
"(d) Before
accepting a mediation, an individual who is requested to serve as a
mediator shall:
"(1) make
an inquiry that is reasonable under the circumstances to determine
whether there are any known facts that a reasonable individual would
consider likely to affect the impartiality of the mediator, including a
financial or personal interest in the outcome of the mediation and an
existing or past relationship with a party or foreseeable participant in
the mediation; and
"(2)
disclose as soon as is practical before accepting a mediation any such
fact known.
"(e) If a
mediator learns any fact described in subdivision (d)(1) of this section
after accepting a mediation, the mediator shall disclose as soon as is
practicable.
"(f) A
mediator shall be impartial, unless, after disclosure of the facts
required in subsections (d) and (e) of this section, the parties agree
otherwise.
"(g) A
person who is requested to serve as a mediator shall disclose the
mediator's qualifications to mediate a dispute if requested to do so by
a party.
"(h) A
person who violates subsection (d), (e), or (f) of this section is
precluded from asserting a privilege under section 5715 of this title.
"(i) Unless
otherwise required by law, no special qualification by background or
profession is necessary to be a mediator under this chapter."
WASHINGTON
Subsec.
(b)(1) provides:
"Whether
the mediation occurred or has terminated, whether a settlement was
reached, attendance, and efforts to schedule a mediation ordered by a
court, administrative agency, or other authority that may make a ruling
on the dispute;"
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§ 8 (Confidentiality)
Modifications |
SECTION 8. CONFIDENTIALITY. Unless subject to the [insert
statutory references to open meetings act and open records act],
mediation communications are confidential to the extent agreed by the
parties or provided by other law or rule of this State. |
NEW JERSEY
Section
provides:
"Unless
made during a session of a mediation which is open, or is required by
law to be open, to the public, mediation communications are confidential
to the extent agreed by the parties or provided by other law or rule of
this State."
OHIO
Section
provides:
"Except as
provided in sections 121.22 and 149.43 of the Revised Code, mediation
communications are confidential to the extent agreed by the parties or
provided by other sections of the Revised Code or rules adopted under
any section of the Revised Code."
VERMONT
Omits "or
rule of this State" following "provided by law".
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§ 9 (Mediator’s
Disclosure of Conflicts of Interest; Background)
Modifications |
SECTION 9. MEDIATOR’S DISCLOSURE OF CONFLICTS OF INTEREST;
BACKGROUND.
(a) Before accepting a mediation, an individual who is
requested to serve as a mediator shall:
(1) make an inquiry that is reasonable under the
circumstances to determine whether there are any known facts that a
reasonable individual would consider likely to affect the impartiality
of the mediator, including a financial or personal interest in the
outcome of the mediation and an existing or past relationship with a
mediation party or foreseeable participant in the mediation; and
(2) disclose any such known fact to the mediation parties
as soon as is practical before accepting a mediation.
(b) If a mediator learns any fact described in subsection
(a)(1) after accepting a mediation, the mediator shall disclose it as
soon as is practicable.
(c) At the request of a mediation party, an individual who
is requested to serve as a mediator shall disclose the mediator’s
qualifications to mediate a dispute.
(d) A person that violates subsection [(a) or (b)][(a),
(b), or (g)] is precluded by the violation from asserting a privilege
under Section 4.
(e) Subsections (a), (b), [and] (c), [and] [(g)] do not
apply to an individual acting as a judge.
(f) This [Act] does not require that a mediator have a
special qualification by background or profession.
[(g) A mediator must be impartial, unless after disclosure
of the facts required in subsections (a) and (b) to be disclosed, the
parties agree otherwise.] |
DISTRICT OF COLUMBIA
In subsec.
(e), adds "or administrative law judge" following "judge".
Adopts
subsec. (g).
ILLINOIS
Adopts
subsec. (g).
IOWA
In subsec. (a)(2), substitutes "practicable" for
"practical".
Adopts
subsec. (g).
NEBRASKA
In subsec.
(c), omits "At the request of a mediation party," preceding "an
individual who is requested".
Adopts
subsec. (g).
NEW
JERSEY
In subsec.
(d), adds ", but only to the extent necessary to prove the violation" at
the end thereof.
Subsec. (e)
provides:
"Subsections a, b., c., and g. do not apply to a judge of any court of
this State acting as a mediator."
Subsec. (g)
provides:
"A mediator
shall be impartial, notwithstanding disclosure of the facts required in
subsections a. and b."
OHIO
Subsec. (e)
provides:
"Divisions
(A), (B), (C), and (G) of this section do not apply when the mediation
is conducted by a judge who might make a ruling on the case."
Adopts
subsec. (g).
UTAH
Omits
subsec. (d).
In subsec.
(e), adds "or ombudsman" following "judge".
Adopts
subsec. (g).
VERMONT
Combines
the provisions of this section and § 7 of the Official text in one
section of the Vermont act. See the Variation Note following section 7,
ante.
WASHINGTON
Omits
subsec. (g).
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§ 10 (Participation in
mediation)
Modifications |
SECTION 10. PARTICIPATION IN MEDIATION. An attorney or
other individual designated by a party may accompany the party to and
participate in a mediation. A waiver of participation given before the
mediation may be rescinded. |
NEW JERSEY
In the
second sentence inserts "representation or" preceding "participation".
OHIO
Adds a
third sentence, which provides: "A mediator may withdraw as mediator at
any time."
WASHINGTON
Section
provides:
"An
attorney or other individual designated by a party may accompany the
party to and participate in a mediation, except that if the dispute
being mediated is the subject of pending proceedings under chapter 12.40
RCW, then a party may not be represented by an attorney in mediation
unless the party may be represented by an attorney in the proceedings
under chapter 12.40 RCW. A waiver of participation given before the
mediation may be rescinded."
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§ 11 (International
Commercial Mediation) Modifications |
SECTION 11. INTERNATIONAL COMMERCIAL MEDIATION.
(a) In this section, “Model Law” means the Model Law on
International Commercial Conciliation adopted by the United Nations
Commission on International Trade Law on 28 June 2002 and recommended by
the United Nations General Assembly in a resolution (A/RES/57/18) dated
19 November 2002, and “international commercial mediation” means an
international commercial conciliation as defined in Article 1 of the
Model Law.
(b) Except as otherwise provided in subsections (c) and
(d), if a mediation is an international commercial mediation, the
mediation is governed by the Model Law.
(c) Unless the parties agree in accordance with Section
3(c) of this [Act] that all or part of an international commercial
mediation is not privileged, Sections 4, 5, and 6 and any applicable
definitions in Section 2 of this [Act] also apply to the mediation and
nothing in Article 10 of the Model Law derogates from Sections 4, 5, and
6.
(d) If the parties to an international commercial
mediation agree under Article 1, subsection (7), of the Model Law that
the Model Law does not apply, this [Act] applies.
Legislative Note. The UNCITRAL Model Law on International
Commercial Conciliation may be found at www.uncitral.org/en-index.htm.
Important comments on interpretation are included in the Draft Guide to
Enactment and Use of UNCITRAL Model Law on International Commercial
Conciliation. The States should note the Draft Guide in a Legislative
Note to the Act. This is especially important with respect to
interpretation of Article 9 of the Model Law.
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DISTRICT OF COLUMBIA
In subsec.
(c), inserts "mediation" preceding "parties".
ILLINOIS
Omits this
section.
IOWA
Omits this
section.
NEBRASKA
Omits this
section.
NEW
JERSEY
Omits this
section.
OHIO
Omits this
section.
VERMONT
Omits this
section.
WASHINGTON
Omits this
section.
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§ 12 (Relation to
Electronic Signatures in Global and National Commerce Act)
Modifications |
SECTION 12. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This [Act] modifies, limits, or supersedes
the federal Electronic Signatures in Global and National Commerce Act,
15 U.S.C. Section 7001 et seq., but this [Act] does not modify, limit,
or supersede Section 101(c) of that Act or authorize electronic delivery
of any of the notices described in Section 103(b) of that Act.
|
IOWA
Substitutes
"modify or supercede" for "modifies, limits, or supersedes" preceding
"the federal Electronic Signatures in Global and National Commerce Act".
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§ 13 (Uniformity of
Application and Construction)
Modifications |
SECTION 13. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this [Act], consideration should be given to
the need to promote uniformity of the law with respect to its subject
matter among States that enact it. |
IOWA
Omits "with
respect to its subject matter" preceding "among States". |
|
§ 14 (Severability
Clause)
Modifications |
SECTION 14. SEVERABILITY CLAUSE. If any provision of this [Act] or its
application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this
[Act] which can be given effect without the invalid provision or
application, and to this end the provisions of this [Act] are severable. |
No
Modifications |
|
§ 15 (Effective Date)
Modifications |
SECTION 15. EFFECTIVE DATE. This [Act] takes effect
................... . |
District of Columbia – April 4, 2006
Illinois – January 1, 2004
Iowa – Approved April 28, 2005
Nebraska – Approved by the Governor May 13, 2003
New Jersey – November 22, 2004
Ohio – October 29, 2005
Utah – May 1, 2006
Vermont – Approved May 3, 2006
Washington – January 1, 2006
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§ 16 (Repeals)
Modifications |
SECTION 16. REPEALS. The following acts and parts of acts are hereby
repealed:
(1)
(2)
(3) |
No
Modifications |
|
§ 17 (Application to
Existing Agreements or Referrals)
Modifications |
SECTION 17. APPLICATION TO EXISTING AGREEMENTS OR
REFERRALS.
(a) This [Act] governs a mediation pursuant to a referral
or an agreement to mediate made on or after [the effective date of this
[Act]].
(b) On or after [a delayed date], this [Act] governs an
agreement to mediate whenever made. |
DISTRICT OF COLUMBIA
Section
provides:
"On or
after January 1, 2007, this chapter governs a mediation pursuant to a
referral or an agreement to mediate, whenever made."
NEBRASKA
Adds a
subsection [designated (c) in the Nebraska act], which provides:
"(c) The
Uniform Mediation Act is intended to address issues of privilege and
does not diminish any other mediation requirements of the statutes of
Nebraska."
NEW
JERSEY
Omits this
section.
OHIO
Omits this
section.
WASHINGTON
Subsec. (b)
provides:
"If all
parties agree in a signed record or a record of proceeding reflects such
an agreement by all parties, then this chapter governs a mediation
pursuant to a referral or an agreement to mediate whenever made."
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