Originially from: World Arbitration and Mediation Review (WAMR)

The Uniform Mediation Act—A Radical Approach to Confidentiality
By Stephen A. Hochman

At its recent meeting in California, the Drafting Committee on the
Uniform Mediation Act of the National Conference of Commissioners on
Uniform State Laws (NCCUSL), in an apparent attempt to placate the California
mediation community, intensified its efforts to mimic the radical approach to
mediation confidentiality embodied in the California statutes. The NCCUSL
Draft is radical in the sense that (a) it creates an evidentiary privilege in the
context of mediated settlement discussions that goes well beyond the type of
protection which Rule 408 of the Federal Rules of Evidence (and similar state
rules) provide for statements made between adversaries in settlement discussions
which are not facilitated by a mediator; (b) it creates a statutory privilege in favor
of a disputant’s adversary (who usually does not have an interest aligned with the
disputant) which is broader than the privilege afforded to a person when confiding
in his or her lawyer, doctor, or priest (who does have a commonality of interest
with such person); (c) it covers not only statements which relate to the subject
matter of the dispute, but also to statements made by a disputant’s adversary, or
by any other participant in the mediation, which are totally unrelated to the
dispute which is the subject of the mediation;1 and (d) the privilege remains in
effect even after the dispute has been resolved. Unless all disputants waive the
privilege, it also prohibits any non-disputant participant in the mediation from
testifying as to statements made by any other non-disputant participant,
irrespective of the subject matter of the statement and even if both non-disputant
participants waive the privilege.
It is universally recognized that an essential element of mediation is
confidentiality. Without confidentiality, parties may be unwilling to engage in the
type of creative and interest-based problem-solving that is often needed to
facilitate settlements. However, it is important to distinguish between
confidentiality and an evidentiary privilege. The proposed statutory mediation
privilege does not require that a disputant’s adversary keep the disputant’s