Tom
I would suggest you contact Ron Kelly a mediator influential in California
legislation and a friend of mine who has been leading the attempts to get
the UMA more in line with state protections for confidentiality for
meditiators and mediation.  He is actively trying to get comments sent to
the UMA drafting committee on their latest draft.  His e-mail is
[log in to unmask]  and a short article on his objections to the UMA were
included in the last AALSB ADR section newsletter.
http://www.alsb.org/ADRNEWS.html

A e-mail he sent yesterday is included below.

"Last Chance on UMA Problems?
Please Copy and Forward Immediately.
Do you know what it would do to your mediations if the current Uniform
Mediation Act became law tomorrow in your state? The UMA aims to change the
way your state defines mediation, what the confidentiality protections are,
how mediations are conducted, and how settlements may be enforced.

Do you know that the last scheduled meeting of the UMA drafting committees
is taking place March 31- April 2? Final adoption is scheduled for later
this year. Please read and analyze the latest draft carefully (March 2000).
No one else may catch the implications of what you spot. Please immediately
point out  problems to the drafting committee members and to your
organizations. This may be your last chance. Full text, contact information
for key drafters and your state's Uniform Law Commissioners, background
information and more at <http://www.ronkelly.com>

Here are just three examples of apparently serious problems with the
language of the current draft:

1) Section 8(a)(1) says confidentiality protections won't exist for "a
record of agreement between two or more disputants". Section 3 (g) says a
record includes anything written or recorded. Suppose the disputants don't
reach a final settlement and they go to court. 8(a)(1) could be interpreted
to mean disputants can subpoena everyone's notes or flip chart records of
the facts or figures they supposedly agreed on. Do you really want
mediation participants to think they are creating evidence any time anyone
makes notes of anything said? Shouldn't the proposed statutory language be
carefully narrowed to clearly admit only those agreements the disputants
make when they clearly intend to be speaking on the record or signing an
admissible settlement?

2) Section 4(b)(1) currently says the Act "shall not apply to the mediation
of disputes arising under, out of, or relating to a collective bargaining
relationship..." This could be interpreted to mean a workplace mediation
isn't confidential under the act if the dispute involves a union member.
Suppose you are a meditator in a university or agency or corporate
mediation program. You are mediating an alleged harassment dispute
involving both unionized and nonunion employees. Do different laws apply
depending on who is in the room at any given time? Is everything said on
the record? Doesn't this need to be clear?

3) Section 8(a)(6) currently says there is no confidentiality protection
"for mediation communications in a pretrial conference conducted by a judge
or other judicial officer who may make or inform rulings on the subject
matter of the mediation". Won't some judges interpret this to mean they can
order you to repeat everything said in mediation? How will it affect
mediation if everyone thinks the mediator will be providing an evaluation
of whose case has merit or which discovery motions should be approved? Some
courts did set up mediation programs which required mediators to submit
secret reports to the judge on exactly these issues. Section 7(b) tries to
guarantee that the mediator remains neutral and does not report to the
judge the mediators opinion of who should win or lose or who admitted what
in the mediation. The enormous exception in the current 8(a)(6) could be
interpreted to seriously undercut this important protection. Your mediator
will be a very credible source of information against you. Shouldn't
8(a)(6) be eliminated or rewritten?

Please believe that you need to make time to read this draft very carefully
yourself, very soon. Don't think someone else will catch everything and fix
it. Again, this could be your last chance.

Thank you,

Ron Kelly, Berkeley

----- Original Message -----
From: "Thomas Cavenagh" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, March 29, 2000 10:58 AM
Subject: Mediator Immunity


> Colleagues:
>
> As many of you know, I have drafted, with the assistance of members of
> the Illinois State Bar Association Section Council on Alternative
> Dispute Resolution, the proposed Illinois Mediator Certification Act.
> The Act, which is considerably broader in scope than the UMA now being
> finalized, addresses mediator immunity more favorably than does the
> UMA.  In fact, while the UMA does not confer immunity to mediators, the
> proposed Illinois Act does.  There is authority for both approaches in
> various jurisdictions.  I would be interested in the perspectives held
> by those of you who have considered mediator immunity.
>
> Best regards,
>
> Tom Cavenagh
>
> --
> Thomas D. Cavenagh, JD
> Associate Professor of Business Law & Conflict Resolution
> Director, Dispute Resolution Center
> North Central College
> 30 North Brainard Street
> Naperville, Illinois 60566-7063
>
> 630-637-5157
> 630-637-5121 (fax)
> [log in to unmask]