Originially from: World Arbitration and Mediation Review (WAMR)

Perspectives
The two articles that follow have been prepared under the editorial
supervision of Nadja Alexander. Professor Alexander is WAMR’s
editor for international mediation and has pioneered the international and
comparative perspective on mediation. She is also Director of the Dispute
Management Centre at the T.C. Beirne School of Law, University of
Queensland, Australia. She is a member of the university’s law faculty.
I.
Standardizing Mediation Confidentiality in the United States
by Richard Birke
Associate Professor of Law, Williamette University College of Law

Mediation in the United States has changed dramatically over the
past fifty years. Mediators have proliferated, and mediation is provided by
large private organizations, by court systems, and by a vast array of
private providers. The process is used to resolve tax disputes, criminal
disputes, civil disputes, family law disputes, and corporate disputes,
among others. The population of mediators and the use of mediation in
new areas is growing, as are the variations in approach and the urge to
regulate the field. Of particular importance is the variation in approaches
to mediation confidentiality.
In this short article, I chronicle and critique a national attempt to
standardize confidentiality within these varied mediation practices—the
recently-minted Uniform Mediation Act (UMA). I begin with a sweeping
history of the recent developments of the field, and then turn to the
UMA. In my conclusion, I offer a cautious pessimism that mediation is
not a field that is amenable to effective standardization.
The Growth of Mediation
Prior to 1960, mediation was a part of the dispute resolution
landscape in the United States, but its use was not widespread. Starting in
the middle 1960s, mediation began a period of unfaltering expansion.
Courts and legislatures, desperate to deal with growing backlogs, started
mediation programs for domestic relations cases and small claims cases
(neighborhood level cases). Starting sometime in the 1970s and
continuing through the 1980s, mediation advocates persuaded legislators
and court administrators that mediation was faster, cheaper, and more
satisfying than court proceedings. They financed a plethora of state and
federal programs. This period was witness to an expansion of the use of
mediation into most areas of legal practice. The corporate world learned