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VOLUME 5, ISSUE 1
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The Uniform Mediation Act: An Analysis of Current State Acts

by Gary Provencher

I. Introduction

In 1998, The National Conference of Commissioners on Uniform State Laws (NCCUSL) set out to draft an act that would harmonize the mediation process among the states. [1] The members of the Drafting Committee recognized the growing support for Alternative Dispute Resolution processes around the country, and particularly the process of mediation. [2] The Committee also realized that there were over 2500 statutes [3] throughout the country that regulated mediation. In 2001, the Committee adopted the final draft of the Uniform Mediation Act (UMA), a comprehensive set of standards that could be adopted by individual states, in order to harmonize mediation throughout the country. Since the adoption of the UMA, eight states: Nebraska, Illinois, New Jersey, Ohio, Iowa, Washington, Utah, and Vermont, as well as the District of Columbia, have adopted versions of the Act. [4]

This paper identifies the changes each state has made to the NCCUSL UMA, and tries to explain the reasoning behind these changes and the effects that they might have. In Section II, I set forth the primary provisions of the UMA that have given rise to divergent state practice. Next, in Section III, I analyze the adjustments each state has made to the Act, and in Section IV I provide an overview of the most recent state adoptions of the UMA. I conclude in Section V by discussing the future of the UMA and potential litigation that may arise under the state acts. Appended to this paper are charts illustrating the key features of each state version of the Act.

II. Privilege Exception Provisions

A. Proceedings Involving Child or Adult Protective Services Agencies (UMA § 6(a)(7))

The NCCUSL version of the UMA contains three alternatives for privilege exceptions involving cases in which a child or adult protective service agency (CAPSA) is a party. Section 6(a)(7) states:

There is no privilege under Section 4 for a mediation communication that is: (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: [C]ase is referred by a court to mediation and a public agency participates.
Alternative B: [P]ublic agency participates in the . . . mediation. [5]

The states that have adopted the UMA have used three different versions of this section.

One way a state may adopt § 6(a)(7) is by omitting both Alternatives. By doing so, privilege will never apply to mediation communications, "sought or offered to prove or disprove neglect, abandonment, or exploitation" [6] in mediations in which CAPSA is a party. Another way the state can adopt this section is by adding Alternative A. This is the middle-of-the-road approach because privilege will apply in some mediations in which CAPSA is a party, but not in others. For example, if the parties voluntarily agree to mediation, privilege will not apply. However, if a court mandates mediation, privilege will apply. Finally, some states have chosen to adopt Alternative B. States that have chosen to adopt this Alternative allow privilege to exist in the greatest number of cases involving CAPSA, because privilege will always exist as long CAPSA participates in the mediation, regardless of whether the mediation was voluntary or court-ordered.

B. Mediation Communications Regarding Court Proceedings Involving Felonies and Misdemeanors (UMA § 6(b)(1))

Another issue that must be addressed when comparing the NCCUSL version of the UMA with the acts adopted by the states is the privilege for mediation communications regarding court proceedings involving felonies and misdemeanors. Section 6(b)(1) sets out a balancing test to be used for mediation communications made in connection with court proceedings involving a felony or a misdemeanor. The provision states:

There is no privilege under Section 4 if a court, administrative agency, or arbitrator finds, after 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 that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in a court proceeding involving a felony [or misdemeanor][.] [7]

This Section of the UMA has been adopted by the states in a variety of ways. Some states have adopted the NCCUSL version in its entirety. In these states, a court, administrative agency, or arbitrator will conduct a balancing test to see if privilege should apply in proceedings that involve both felonies and misdemeanors. [8] Therefore, it is possible for privilege to apply, or not to apply, for both felonies and misdemeanors. Other states have omitted the words "or misdemeanor" when adopting this Section of UMA. In these states, privilege will always apply in court proceedings involving misdemeanors, and a balancing test will occur in felony proceedings. [9] Therefore, privilege will only be exempted in felony cases where the court finds that "the evidence is not available . . . [and the] need for evidence substantially outweighs the interest in confidentiality." [100 Furthermore, one state has adopted provisions that exempt privilege in all felony cases and adopted a provision that allowed the balancing test for misdemeanors. [11] Lastly, some states have adopted privilege provisions that apply to crimes defined in state statutes, [12] or criminal proceedings in district court.

III. State Statutes

A. Nebraska

Nebraska was the first state to adopt the UMA, introducing Legislative Bill 255 in January of 2003, and formally adopting NE ST § 25–2930–42 on January 1, 2004. [13] Due to pre-existing state laws and an intricate mediation system already in place, Nebraska made a number of changes when adopting the UMA. First, Nebraska had implemented a peer mediation program in public schools and juvenile detention centers in which children act as mediators for disputes between their peers. Thus, the language concerning the scope of the UMA in schools and youth correctional facilities has been altered in the Nebraska statute. Next, due to preexisting state laws, Nebraska omitted both Alternative A and B of the NCCUSL provision regarding mediations in which CAPSA is a party. Also, the NCCUSL balancing test only applies to felonies under the Nebraska UMA, and thus privilege always exists in misdemeanor proceedings. Lastly, Nebraska requires mediators to disclose their qualifications regardless of whether or not the parties request the information.

Turning first to Nebraska's decision concerning youth mediations, the NCCUSL UMA does not apply to mediations "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." [14] The Nebraska law inserts "and the mediator[,]" [15] after the word parties in both of the aforementioned sections. Therefore, it seems that a strict interpretation of the Nebraska statute would require the parties [16] and the mediator to be either students, or residents of the facility, in order for the UMA not to apply. Under such a construction, it seems that a dispute in which both parities are students, or residents of a facility, that is mediated by a person that is not a student or resident, would fall within the scope of the Act. However, officials at the Nebraska Office of Dispute Resolution state that this is not how the provision was intended to be read. Instead, "and the mediator" was added to the statute only to recognize the peer mediation system in Nebraska schools and youth correctional facilities. [17] Further, the provision could not apply to mediations in which both parties are youths because children could not be legally bound by the statute or outcomes of mediations without parental consent. [18] Therefore, although the language of the Nebraska UMA is different from the NCCUSL version, each Act should have the same effect in practice.

A further difference between the Nebraska statute and the NCCUSL UMA relates to privilege in mediations involving CAPSA. Section 25–2935(a)(7) states: "There is no privilege . . . for a mediation 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." [19] This language parallels that of the UMA passed by NCCUSL, however, Nebraska chose to omit both of the Alternatives found in the NCCUSL Act that would allow privilege to still exist in some cases involving CAPSA. Nebraska could not have adopted Alternative A of the NCCUSL UMA, because mediations involving child abuse or neglect cannot be court ordered in Nebraska. [20] Therefore, the only alternatives for Nebraska were either to exempt privilege in mediations in which CAPSA was a party, or select Alternative B which allows privilege to exist if CAPSA participates in the mediation. If Nebraska chose Alternative B, privilege would exist in almost all cases involving CAPSA. Therefore, Nebraska was faced with a choice to either exempt privilege in all cases involving CAPSA, or allow privilege in nearly all cases in which CAPSA is a party, and Nebraska decided to omit both exceptions from the Act.

To get a better prospective on the practical effect of exempting privilege from domestic relations mediations, I spoke with a mediator from the Central Mediation Center in Kearney, Nebraska. [21] I was informed that at the beginning of domestic affairs mediations, mediators are required to disclose that if the mediator hears or witnesses information evidencing abuse, they are required to make a report to the proper authorities. [22] In essence, the mediator will take into account the gravity of the situation and make a decision whether the circumstances necessitate calling on authorities to prevent future abuse. Interestingly, the mediator may disclose information to authorities regardless of whether they are ordered to, and may do so against the wishes of the mediation parties. Further, the mediator told me that a court cannot subpoena a mediator to testify, although they can subpoena records. [23] Thus, although the Nebraska statute exempts privilege for domestic relations mediations, it seems that in practice privilege may still apply, but the confidentiality requirements are loosened.

During my conversation with the mediator, I also asked if the privilege exception stifled mediation communications, or made parties more unwilling to mediate a dispute. The mediator told me that there was a screening process in place in which they speak to both the abused and alleged abuser before scheduling mediation. [24] It is during this screening process that parties decide whether or not they want to mediate. If they agree, the mediator will bring the parties together and then disclose that the mediator may report evidence of abuse. The mediator stated that if the parties agree to mediation, the fact that a mediator may disclose abuse does not affect the mediation. [25] This is because parties do not generally agree to mediate a domestic dispute if there has been violence in the relationship. Either the abused does not feel safe in the same room with the alleged abuser, or the alleged abuser is afraid that the abused will "push their buttons" and make them look bad during the mediation. Further, if the mediator gets the feeling during the screening process that mediation is not the best dispute resolution method, the mediator will not schedule mediation. Generally speaking, domestic mediations do not involve serious abuse issues, and therefore, the fact a mediator may report abuse does not have an effect on most mediations.

Nebraska has chosen to adopt the NCCUSL balancing test for felonies only. Section 25–2935(b)(1) states that privilege may not exist if a court or arbitrator finds that "there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in a court proceeding involving a felony." [26] Therefore, under the Nebraska UMA, a court or arbitrator can only decide to make an exception to privilege in proceedings involving a felony, and privilege will always exist in misdemeanor proceedings.

The last change in the Nebraska statute involves the disclosure of mediator qualifications. Section 25–2938(c) states, "An individual who is requested to serve as mediator shall disclose the mediator's qualifications to mediate a dispute." [27] This differs from the NCCUSL version of the UMA which states, "At the request of a mediation party, an individual shall disclose . . ." [28] Thus, under the Nebraska statute, a mediator must disclose her qualifications regardless of whether or not the parties request that she do so. This decision was made by the Nebraska Office of Dispute Resolution because it was concerned about the credentials of mediators. [29] Specifically, the Nebraska legislature was concerned with people relying on mediators that are not qualified to settle disputes. Since a party to mediation may not know to ask a mediator about their qualifications, Nebraska felt that requiring all mediators to disclose their qualifications would eliminate, or at least limit, mediators without the proper credentials.

B. Illinois

The second state to adopt the UMA was Illinois, which first introduced House Bill 2146 on February 11, 2003, and the Illinois UMA took effect on January 1, 2004. [30] The Illinois statute [31] parallels the NCCUSL version more than that of any other state. In fact, the only differences in the Illinois statute are the two provisions regarding privilege exceptions and the omission of the International Commercial Mediation section. With the exception of these revisions, the Illinois statute is the same as the NCCUSL version.

Regarding mediations in which protective services are involved, Illinois has adopted Alternative A of the NCCUSL version of the UMA [32] which allows privilege to still exist in some cases involving CAPSA. Under the Illinois statute, you start with the premise that privilege does not apply to mediation communications "sought or offered to prove abuse neglect, abandonment, or exploitation in a proceeding in which child or adult protective services is a party[.]" [33] Under Nebraska's UMA, this would end the analysis, and there would be no privilege. In contrast, Illinois has adopted an exception which allows privilege to still apply if the "case is referred by a court to mediation and a public agency participates." [34] Therefore, in Illinois, privilege will be exempt in some mediations in which CAPSA is a party, and privilege will apply in others.

Like Nebraska, Illinois only adopted the NCCUSL balancing test in felony proceedings. Therefore privilege will always apply in misdemeanor proceedings, and will apply also apply in felonies, unless other evidence is not available and the "need for the evidence . . . substantially outweighs the interest in protecting confidentiality[.]" [35]

Overall, the most notable feature of the Illinois UMA is the Act's similarity to the NCCUSL UMA. Illinois made no major changes to the UMA, and thus it parallels the NCCUSL version more than any of the other first five states to adopt the Act.

C. New Jersey

Assembly, No. 841 was first introduced to the New Jersey legislature on January 13, 2004, and went into effect on November 22, 2004 as N.J.S. § 2A:23C–1 et seq. [36] New Jersey has adopted Alternative B in proceedings in which state protective services are involved, thus, privilege still exists in mediations in which the agency participates. [37] The New Jersey law also replaced the NCCULS balancing test language for proceedings involving felonies and misdemeanors, with language that attaches the exemptions to a state statute. {38] Lastly, the New Jersey UMA added language that alters the ramifications of mediator privilege when a mediator violates the disclosure provision. [39]

The NCCUSL and all state UMAs include language that exempts privilege for mediation communications "sought or offered to prove or disprove abuse, neglect, abandonment or exploitation in a proceeding . . ." [40] when a state protection agency is involved. Comment 8 to Section 6 of the NCCUSL UMA explains that this may include child abuse, elderly abuse, or abuse of a disabled person. [41] However, under the New Jersey statute, the exemption only applies to child abuse. [42] Therefore, privilege will always apply in cases of abuse of the elderly or the disabled.

Another difference regarding proceedings involving state protective services is that New Jersey was the first state to adopt Alternative B of NCCUSL UMA § 6(a)(7). Under the New Jersey UMA, privilege will still apply in child abuse proceedings if the Division of Youth and Family Services participates in the mediation. [43] By adopting Alternative B, privilege will apply in all these proceedings regardless of whether or not a court referred the case to mediation. In sum, under the New Jersey code, privilege will always apply in a proceeding involving elderly and disabled person's abuse, and will also apply in child abuse proceedings if the Division of Youth and Family Services participates in the mediation. Therefore, privilege will apply in more abuse proceedings in New Jersey than in any other state that has adopted the UMA.

New Jersey has altered the NCCUSL UMA language for privilege exceptions in proceedings involving felonies or misdemeanors. Whereas the NCCUSL UMA contains a balancing test for felonies or misdemeanors, the New Jersey UMA attached the balancing test to "a court proceeding involving a crime as defined in the 'New Jersey Code of Criminal Justice' N.J.S. 2C:1–1 et seq." [44] The relevant language in the Code states, "An offense defined by this code or by any other statute of this State, for which a sentence of imprisonment in excess of 6 months [45] is authorized, constitutes a crime within the meaning of the Constitution of this State." [46] As the language quoted above indicates, the balancing test for privilege will only apply in cases where the offense carries a sentence of at least six months.

The last change in the New Jersey UMA concerns violations of the rules of mediator disclosure. The NCCUSL Act requires mediators to disclose conflicts of interest and remain impartial. [47] If a mediator violates this requirement, they are precluded from asserting privilege [48] and may be required to disclose information in a subsequent proceeding. The New Jersey UMA also requires mediators to disclose conflicts and remain impartial. [49] However, violation of this requirement does not completely preclude the mediator from asserting privilege under the New Jersey statute. Instead, a mediator that violates these requirements in New Jersey is only precluded from asserting privilege "to the extent necessary to prove the violation." [50] Therefore, the effects of violations of mediator disclose requirements may be less harsh under the New Jersey UMA, than under the NCCUSL UMA and the other state acts.

D. Ohio

Ohio, the fourth state to adopt the UMA, first introduced House Bill 303 in October of 2003. [51] The final bill was passed in December 2004 and the Ohio UMA [52] took effect in April of 2005. Although the Ohio UMA closely follows the NCCUSL version, there are important differences concerning privilege exceptions for felonies. Further, the Ohio statute specifically states that a mediator may withdraw at any time.

The biggest difference between the Ohio statute and the NCCUSL version of the UMA concerns exceptions to privilege when a case involves a felony. Although the Ohio UMA adopted the NCCUSL balancing test for proceedings involving misdemeanors, O.R.C. § 2710.5 contains two provisions in which a mediation communication is not subject to privilege in felony cases. First, O.R.C. § 2710.05(A)(8) states that no privilege exists when "the mediation communication is required to be disclosed pursuant to section 2921.22 [53] of the Revised Code." Further, O.R.C. § 2710.05(A)(9) also exempts a mediation communication from privilege if:

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. [54]

Thus, whereas the NCCUSL version of the UMA may make an exception for privilege in cases involving felonies if the "need for evidence substantially outweighs the interest in protecting confidentiality," [55] the Ohio statute has no balancing test and privilege is exempted in all criminal proceedings involving felonies.

The Ohio legislature adopted § 2710.05(A)(8)&(9) in order to get the UMA passed in the state. The original bill [56] introduced in Ohio did not extend the privilege exception provisions to felonies, and instead the bill contained the NCCUSL balancing test for both felonies and misdemeanors. According to Dean Nancy Rogers, who served as the Reporter for the Drafting Committee of the NCCUSL UMA, [57] supporters of the legislation felt they needed the support of local prosecuting attorneys, and thus, in order to get the bill passed, they had to include a provision that made a privilege exemption to all cases involving felonies. Thus, the UMA supporters added § 2710.05(A)(8)&(9) to the final draft of the bill in order to gain the support of the Ohio Prosecuting Attorney Office. [58] At the time of writing, Ohio is the only state that has a complete privilege exemption for felony proceedings.

In addition, Ohio also adopted different language concerning privilege in misdemeanor cases. Under the NCCUSL, there is no privilege in misdemeanor proceedings if "there is a need for the evidence that substantially outweighs the interest of confidentiality." [59] The Ohio statute replaces this language with the phrase, "the disclosure is necessary . . . to prevent a manifest injustice[.]" [60] Therefore, the threshold may be higher to exempt privilege in misdemeanor proceedings in Ohio than it is under the NCCUSL Act or statutes of other states.

Like Illinois, Ohio has adopted Alternative A of the NCCUSL UMA for proceedings in which CAPSA in a party meaning that privilege still exists in these proceedings if a court referred the case to mediation. [61] However, privilege is exempt for mediations in which CAPSA is a party, if the parties voluntarily chose to mediate the case.

The last change to the Ohio UMA comes in O.R.C. § 2710.09(E). This section parallels UMA § 10, except that the Ohio statute adds: "A mediator may withdraw as a mediator at any time." [62] The NCCUSL version of the UMA does not address this subject anywhere in the text or the Comments to the Act, and thus it is unclear under what circumstances a mediator may withdraw under the NCCUSL version. Interestingly, the Ohio Act's withdrawal provision was not included in the original bill. Rogers explains that the original bill did not include a provision for mediator withdrawal based on the reasoning that withdrawal was permitted unless expressly forbidden. [63] However, Ohio mediators were concerned that silence might be read otherwise, and thus they lobbied to put an express withdrawal provision in the bill. Due to concern that the bill would not pass without an explicit withdrawal provision, supporters of the bill included such language. Rogers argues that the withdrawal provision is "a statement of the obvious." [64] Including a statement of the obvious in a statute can lead courts to imply a reason for the language that was not intended. For example, imagine a dispute arises in Nebraska when a mediator withdraws from a mediation. One of the parties feels that he was damaged by the mediator withdrawal and brings a suit against the mediator. The mediator argues that her authorization to withdraw is implicit in the act. The attorney for the aggrieved party then counters by citing the Ohio Act, and argues that if the right of withdrawal was implicit in the Act, it would not have been necessary for Ohio to adopt a provision explicitly stating a mediator may withdraw. Thus, according to Rogers, the explicit right to withdraw does nothing to protect mediators in Ohio because the UMA implies the right to withdraw, and therefore, the only effect of the provision is to possibly harm mediators in other states. [65]

E. Iowa

The first draft of the Iowa UMA, Senate File 323, was first introduced to the Iowa legislature on March 9, 2005, and Iowa became the fifth state to formally adopt the UMA on July 1, 2005. [66] The Iowa version of the UMA [67] is nearly identical to the NCCUSL version with the exception of an added provision regarding mediator immunity. [68] Iowa has adopted Alternative A of NCCULS UMA § 6(a)(7), and the Iowa UMA allows for a balancing test regarding whether a privilege exists in both felony and misdemeanor cases. [69] The main difference between the Iowa Act and those adopted by the other states is I.C. § 679C.115, which gives mediators immunity from civil liability.

Along with Illinois and Ohio, Iowa has adopted Alternative A of the NCCUSL version of the UMA regarding mediations in which CAPSA is a party, and consequently, privilege applies in cases, "referred by a court to mediation and a public agency participates." [70] Furthermore, Iowa is currently the only state to adopt a version of the NCCUSL balancing test that balances the need for evidence against the interest of protecting confidentiality in the same way for both felonies and misdemeanors. [71] Thus, whereas privilege will always apply in misdemeanor proceeding in some states, and privilege will never apply to felony proceedings in Ohio, Iowa is the only state that will use a balancing test in all proceedings involving felonies and misdemeanors.

The most intriguing aspect of the Iowa UMA is I.C. § 679C.115, which gives mediators immunity from civil liability. The code states:

A mediator or a mediation program shall not be liable for civil damages for a statement, decision, or omission made in the process of mediation unless the act or omission by the mediator or mediation program is made in bad faith, with malicious purpose, or in a manner exhibiting willful or wanton disregard of human rights, safety, or property. [72]

By placing this provision in the Act, Iowa became the first state to formally recognize mediator immunity from civil liability in a UMA.

Although many may argue that a provision explicitly giving mediators immunity would be advantageous to the mediation community in Iowa, some supporters of mediation in other states are concerned by this provision of the Iowa UMA because courts and states regulate the mediators in their jurisdictions, and thus mediators likely already have immunity. Whether court or state appointed mediators have immunity is an issue rarely addressed by courts. However, the U.S. Court of Appeals for the Sixth Circuit has stated: "The district court found that the mediators [73] serve a quasi-judicial function and were absolutely immune from damages[.]" [74] The court went on to explain that "[t]he appellants do not norcan they contest that the mediators serve a quasi-judicial function and should normally be entitled to immunity[.]" [75] At least under the logic of the Sixth Circuit, court and state appointed mediators already enjoy immunity from civil liability. As such, the only mediators that are not protected from liability are private mediators that are not affiliated with, and thus not regulated by, the court or state systems, and these individuals are the only mediators that benefit from an explicit provision giving mediators immunity. Thus, while at first glance it may seem like a good idea to explicitly give immunity to all mediators, doing so may not benefit the mediation community as a whole.

F. Washington

Washington became the sixth state to enact the UMA when it formally adopted its version of the Act on January 1, 2006. [76] Washington chose to adopt Alternative B of the UMA regarding mediations in which CAPSA is a party, and so privilege will exist in both voluntary and court-ordered mediations when CAPSA participates in the mediation. [77] The Washington Act also only allows for a balancing test in felony cases. [78] Therefore, privilege will always exist in misdemeanor cases. Although the Washington UMA is generally in line with the NCCUSL Act, there are some interesting differences. First, Washington chose to omit language that would exempt certain collective bargaining relationships from the scope of the Act. Also, the Washington Act includes language that allows a mediator to disclose efforts to schedule a court-ordered mediation. Lastly, Washington chose to leave out optional language included in the NCCUSL Act regarding mediator immunity.

Currently, Washington is the only state that omits language that excludes disputes regarding collective bargaining relationships and collective bargaining agreements from the scope of the UMA. Section 3(b) of the NCCUSL UMA states that 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 process 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. [79]

By excluding this language from its Act, Washington has brought all disputes regarding collective bargaining relationships and collective bargaining agreements within the scope of its UMA.

Washington omitted the collective bargaining language because local government groups lobbied to exclude Section 3(b)(1) and (2) from the Act. [80] The reason that these groups wanted to exclude Section 3(a) & (b) is unclear. Comment 3 to Section 3 of the NCCUSL UMA states that the Section was placed in the UMA "because of the longstanding, solidified, and substantially uniform mediation systems that are already in place in the collective bargaining process." [81] Thus, it may be possible that the prior collective bargaining mediation systems in Washington may not have been as solidified as systems in other states, or Washington may have wanted a uniform system for mediations in all contexts.

Another interesting aspect of the Washington Act concerns mediator disclosure. Under the statute, a mediator may disclose "efforts to schedule a mediation ordered by a court, administrative agency, or other authority that may make a ruling on the dispute[.]" [82] It is important to recognize that the provision only allows mediators to disclose scheduling information for mandatory mediations, and thus, they may not disclose this information if the mediation is voluntary. The provision may have been adopted because mediators wanted to remedy past scheduling problems, or Washington could have adopted this language simply as a precautionary measure to ensure that these problems would not occur in the future.

The last significant difference in the Washington UMA is the absence of a provision that requires mediator impartiality. Mediator impartiality is addressed in § 9(g) of the NCCUSL UMA, and Comment 3 to Section 9 states that the Section "is suggested as a model provision and need not to be part of a Uniform Act." [83] The Comment goes on to explain that although in most cases mediator impartiality is strongly encouraged, there are concerns with statutorily mandating that a mediator be impartial. [84] Along with concerns mentioned in the Comments, Washington may have chosen not to adopt the optional language of § 9(g) because mediator impartiality is also addressed in the Model Standards of Conduct for Mediators. [85]

IV. Recent State Adoptions

At the time of writing, the latest three jurisdictions to adopt the UMA are Utah, Vermont, and the District of Columbia. Below, I have outlined the most notable changes made by each jurisdiction in adapting the UMA.

A. Utah
Utah was the seventh state to adopt the UMA, when §78–31c took effect on May 1, 2006. [86] Perhaps the most remarkable aspect of the Utah Act is that it is the first state Act to adopt the International Commercial Mediation provision of the NCCUSL Act. [87] The only notable difference between Utah Act and the NCCUSL version concerns the privilege exception for mediations in which CAPSA is a party. Instead of adopting the NCCUSL language regarding CAPSA mediations, the Utah statute states that "[t]here is no privilege . . . for a mediation communication that is: (9) subject to the reporting requirements in Section 62A–3–305 or 62A–4a–403." [88] Section 62A–3–305 is Utah's statute regarding when a person must contact Adult Protective Services, and 62A-4a-403 is Utah's statute for report requirements in cases of child abuse or neglect. Thus, like the NCCUSL version of the UMA, privilege will not apply in many cases when there is evidence of abuse toward a child or vulnerable adult. However, whether or not a court must order the mediation for privilege not to apply is unclear. Although the Utah Act does exempt privilege in many of these cases, it is uncertain whether the Utah provision is closer to Alternative A or Alternative B of the NCCUSL version of the Act.

B. Vermont

Vermont, the eighth state to adopt the UMA, approved H.33 on May 3, 2006. [89] The only significant change in the Vermont Act concerns mediations that take place due to mediation provisions included in collective bargaining agreements. Generally, both the NCCUSL and the Vermont UMA do not apply to these types of mediations, yet the respective Acts do apply if the mediation has been filed with a court or public agency. However, the Vermont Act states that it does not apply to mediations that arise due to provisions in collective bargaining agreements when the mediation has been filed with the Federal Mediation and Conciliation Service or the Vermont Labor Relations Board. [90]

C. District of Columbia

In addition to the eight States that have adopted the UMA, the District of Columbia adopted a version of UMA [91] on April 4, 2006. In adopting the act, the District of Columbia made two notable changes. First, the District Act exempts certain consumer complaint mediations from the provisions of the Act. [92] Second, the District did not include the Severability Clause found in the NCCUSL Act. [93] Lastly, like Utah, the District of Columbia Act also includes the NCCUSL provisions regarding International Commercial Mediation.

Many mediations arising from consumer complaints are not covered by the scope of the District of Columbia Act if one of the parties is the complainant. Section 16–4202(b)(4)(C) provides:

This chapter does not apply to a mediation: (4) [c]onducted under the auspices of:
The Office of the Attorney General for the District of Columbia or the Mayor, if the mediation arises from a consumer compliant 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.

Although it is not certain why the District of Columbia chose to exclude many consumer complaints from the scope of the Act, it may be due to intricate consumer protection policies already in place under the District's law.

The second change the District of Columbia made to the NCCUSL version of the Act was to leave out the Severability Clause. Thus, it is possible that if one provision of the District of Columbia's Act were held to be invalid, the entire Act may be invalid in the District. The clause may have been left out of the Act in order to allow those with particular expertise with the Act an opportunity to review how the invalid provision would affect the remaining provisions of the Act.

V. The Future of the Uniform Mediation Act

The rapid response of states adopting the UMA validates the benefits of Alternative Dispute Resolution processes. State legislators, who see the benefits of mediation, want to maximize these benefits by adopting acts like the UMA which allow parties to settle their claims on their own terms and cut down on overcrowded dockets throughout the country. However, the UMA, just as every other law passed, will itself be subjected to judicial scrutiny. Ironically, the Act passed to help people stay out of court will inevitably itself be the subject of litigation. In fact, New Jersey courts have already addressed the balancing test concerning privilege in State v. Williams. [94] The Court in Williams stated, "Because there is a substantial interest in protecting mediator confidentiality, we must consider defendant's need for the mediator's testimony[,]" [95] and the court found that "defendant's need for the mediator's testimony does not outweigh the interest in protecting mediation confidentiality." [96] Although this is only one case in one state, [97] it may foreshadow that the courts are going to protect mediator privilege unless there are extremely compelling reasons not to do so.

Aside from privilege issues, we can expect to see litigation arising out of other provisions of the UMA. For example, mediator impartiality, failure to disclose conflicts of interest, and whether a mediator has immunity, [98] are just a few examples of issues for potential litigation. However, the cases will most likely be few and far between, and in the meantime mediators will continue to settle hundreds of thousands of case out of court. Further, as states continue to adopt the UMA and bring uniformity to the mediation process, judges will be able to look at other states to better understand how to interpret the provisions of the UMA. Uniformity will allow mediators to examine how courts in other states interpret the Act and this may give mediators a better understanding of how to comply with the provisions of the UMA.

Overall, the UMA has been a huge success. Aside from a few modifications, most states that have adopted versions of the Act that largely parallel the NCCUSL version. The Act has put mediation on the radar of state legislators, and hopefully we will continue to see states adopt their own versions in the near future.

VI. State Charts

Issue

Nebraska

NCCUSL

Scope of the UMA

NE ST § 25-2932(b)(4)(A)&(B)
The UMA does not apply to a mediation conducted under the auspices of:
(A) a primary or secondary school if all the parties and the mediator are students
(B) a correctional institution for youths or a juvenile center if all the parties and the mediator are residents of that institution

UMA § 3(b)(4)(A) (B)
The UMA does not apply to a mediation conducted under the auspices of:
(A) a primary or secondary school if all the parties are students
(B) a correctional institution for youths if all the parties are residents of that institution

Exception to privilege for mediation communication 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

NE ST § 25-2935(a)(7)
Absolute Exception
(No privilege)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

NE ST § 25-2935(b)(1)
Balancing test for felonies only

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

Disclosure of mediator qualifications

NE ST § 25-2938
Mediator must disclose qualifications

UMA § 9(c)
Mediator must disclose qualifications only at the request of the parties

International commercial mediation

Not addressed in Nebraska statute

UMA § 11

 

Issue

Illinois

NCCUSL

Exception to privilege for mediation communication 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

710 ILC 35/6(a)(7)
Privilege still exists if the case is referred by a court to mediation and the public agency participates
(Alternative A)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

710 ILC 35/6(b)(1)
Balancing test for felonies only

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

International commercial mediation

Not addressed in Illinois statute

UMA § 11

 

Issue

New Jersey

NCCUSL

Exception to privilege for mediation communication 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

N.J.S. § 2A:23C-6(a)(7)
Exemption can only apply in proceeding involving child abuse

Privilege still exists if the Division of Youth and Family Services participates in the mediation
(Alternative B)

UMA § 6(A)(7)
Exemption can apply in cases of child abuse, elderly abuse, or abuse to disabled

Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

N.J.S. § 2A:23C-6(b)(1)
Balancing test for crimes defined in NJS 2C:1-1 et seq.
A crime is defined as an offense for which a sentence of imprisonment in excess of 6 months is authorized

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

Mediator preclusion from asserting privilege due to failure of disclosure of conflicts of interests, failure to disclose qualifications, or failure to maintain impartiality

N.J.S. § 2A:23C-9(d)
Mediator is precluded from asserting privilege, but only to the extent necessary to prove violation

UMA § 9(d)
Mediator is precluded from asserting privilege

International commercial mediation

Not addressed in New Jersey statute

UMA § 11

 

Issue

Ohio

NCCUSL

Exception to privilege for mediation communication 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

O.R.C. § 2710.05(A)(7)
Privilege still exists if the case is referred by a court to a mediation and a public agency participates
(Alternative A)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Exceptions to privilege regarding felonies

O.R.C. § 2710.05(A)(8) & (9)
Privilege does not exist in felony cases

UMA § 6(b)(1)
Balancing test for felonies

Exceptions to privilege regarding misdemeanors

O.R.C. § 2710.05(B)(1)
Balancing test for misdemeanors

UMA § 6(b)(1)
Balancing test for misdemeanors

Mediator disclosure

O.R.C. § 2710.06(B)(2)
Mediator may disclose confidential information to the extent agreed to by the parties

UMA § 7(b)(2)
Mediator may only disclose communications that are excepted from privilege

Mediator withdrawal

O.R.C. § 2710.09(E)
Mediator may withdraw at any time

Not addressed

International commercial mediation

Not addressed in Ohio statute

UMA § 11

 

Issue

Iowa

NCCUSL

Exception to privilege for mediation communication 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

I.C. § 679C.106(1)(g)
Privilege still exists if the case is referred by a court to a mediation and a public agency participates
(Alternative A)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

I.C § 679C.106(2)(a)
Balancing test for felonies or misdemeanors

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

Mediator immunity

I.C. § 679C.115
Mediator immune from civil liability for a statement, decision, or omission made in the process of mediation unless the act or omission is made in bad faith, with malicious purpose, or in a manner exhibiting willful or wanton disregard of human rights, safety or property

Not addressed

International commercial mediation

Not addressed in Iowa statute

UMA § 11

 

Issue

Washington

NCCUSL

Scope of UMA

Omits language regarding mediations concerning collective bargaining relationships, and collective bargaining agreements. Therefore, the act does apply in these situations.

UMA § 3(b)(1)&(2)
Mediations concerning collective bargaining relationships and collective bargaining agreement are not within the scope of the Act and, thus the Act does not apply.

Exception to privilege for mediation communication 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

RCW 7.07.050(1)(g)
Privilege still exists if the public
agency participates
(Alternative B)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

RCW 7.07.050(2)(a)
Balancing test for felonies only

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

Mediator disclosure

RCW 7.07.060(2)(a)
Mediator may disclose efforts to schedule a mediation ordered by a court, administrative agency or authority that may make a ruling on the dispute

Not addressed

Mediator impartiality

Omits the language of NCCUSL UMA § 9(g)

UMA § 9(g)
A mediator must be impartial, unless after the disclosure of the facts required in subsection (a) and (b) to be disclosed, the parties otherwise agree

International commercial mediation

Not addressed in Washington statute

UMA § 11

 

Issue

Utah

NCCUSL

Exception to privilege for mediation communication 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

UCA § 78-31c-106(1)(g)
No privilege for a mediation communication that is subject to the reporting requirements in UCA § 62A-3-305 or 62A-4a-403

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

UCA § 78-31c-106(2)(c)(i)
Balancing test for felonies and misdemeanors

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

 

Issue

Vermont

NCCUSL

Scope of UMA

VSA § 5714(b)(2)
Act does not apply to mediations that arise from disputes pending under a process set forth by collective bargaining agreements if the dispute has been filed with Federal Mediation and Conciliation Service or the Vermont Labor Relations Board.

UMA § 3(b)(2)
Dispute pending under a process set forth by a collective bargaining agreement are subject to the Act if the mediation arise out of a dispute that has been filed with an administrative agency or court.

Exception to privilege for mediation communication 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

VSA § 5717(a)(5)
Privilege still exists if the case is referred by a court to mediation and a public agency participates.
(Alternative A)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

VSA §5717(b)(1)
Balancing test for criminal proceeding in a district court

UMA § 6(b)(1)
Balancing test for felonies and misdemeanors

International commercial mediation

Not addressed in Vermont statute

UMA § 11

 

Issue

District of Columbia

NCCUSL

Scope of UMA

DC ST § 16-4202(b)(4)(C)
Does not apply to a number of mediations that arise from a consumer complaint if one of the mediation parities is the consumer complainant.

UMA § 3(b)
No exclusion for mediations arising under consumer complaints.

Exception to privilege for mediation communication 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

DC ST § 16-4205(a)(7)
Privilege still exists if the case is referred by a court to a mediation and a public agency participates.
(Alternative A)

UMA § 6(A)(7)
Two alternatives to exception (Privilege still exists):
(A) If the case is referred by a court to mediation and the public agency participates
(B) If a public agency participates in the mediation

Balancing test for privilege regarding felonies or misdemeanors.

DC ST § 16-4205(b)(3)(A)
Balancing test for felonies and misdemeanors

UMA § 6(b)(1)
Balancing test for felonies [or misdemeanors]

Severability Clause

Not addressed in D.C. statute

UMA § 14


[1] See Unif. Mediation Act prefatory cmt. (2004).

[2] Id.

[3] See Stephen B. Goldberg, Frank E. A. Sander, Nancy H. Rogers, & Sarah R. Cole, Dispute Resolution: Negotiation, Mediation and Other Processes 643 (4th ed. 2003).

[4] See infra Sections III–IV.

[5] Unif. Mediation Act § 6(a)(7) (2004).

[6] Id.

[7] Unif. Mediation Act § 6(b)(1) (2004).

[8] See infra Section III(E).

[9] See infra Sections III(A), III(B), and III(F).

[10] Unif. Mediation Act § 6(b)(1) (2004).

[11] See infra Section III(D).

[12] See infra Section III(C).

[13] See 2003 Neb. Laws L.B. 255.

[14] Unif. Mediation Act § 3(b)(4) (2004).

[15] Neb. Rev. Stat. § 25–2932(b)(4)(B) (2006).

[16] Under U.M.A. § 2(5) and NE ST § 25–2931, a party is defined as "a person that participates in a mediation and whose agreement is necessary to resolve the dispute." Thus, a mediator is not a party.

[17] Telephone Interview with member, Nebraska Mediation Center Association (Feb. 23, 2006).

[18] No statute explicitly addresses whether an infant can be bound by a mediated agreement. However, the common law "infancy doctrine" allows persons under 18 to disaffirm their obligations and void contracts. See, Halbman v. Lemke, 298 N.W.2d 562 (Wis. 1980); and Restatement (Second) of Contracts § 12 (1978). The Uniform Commercial Code also gives infants a statutory defense to avoid liability on a negotiable instrument. See U.C.C. § 3-305(a)(1) (2005).

[19] Neb. Rev. Stat. § 25–2935(a)(7) (2006).

[20] Neb. Rev. Stat. § 43–2904(2) (2006).

[21] Telephone Interview with a mediator that asked not to be named, Central Mediation Center, in Kearney, Neb. (May 3, 2006).

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Neb. Rev. Stat. §25–2935(b)(1) (2006).

[27] Neb. Rev. Stat. §25–2938(c) (2006).

[28] Unif. Mediation Act §9(c) (2004).

[29] Telephone Interview, supra note 17.

[30] See 2003 Ill. Leg. Serv. PA. 93–99 (H.B. 2146) (West).

[31] 710 Ill. Comp. Stat. 710 35/1–35/13 (2006).

[32] See Unif. Mediation Act § 6(a)(7) (2004).

[33] 710 Ill. Comp. Stat. 35/6(a)(7) (2006).

[34] Id.

[35] 710 Ill. Comp. Stat. 35/6(b) (2006).

[36] See 2004 N.J. Sess. Law Serv. Ch. 157 (Senate 679) (West).

[37] See, N.J. Stat. Ann. § 2A:23C–6(a)(7) (2006).

[38] See N.J. Stat. Ann. § 2A:23C–6(b)(1) (2006).

[39] See N.J. Stat. Ann. § 2A:23C–9(d) (2006).

[40] Unif. Mediation Act § 6(a)(7) (2004).

[41] See Unif. Mediation Act §6 cmt. 8 (2004).

[42] See N.J. Stat. Ann. § 2A:23C–6(a)(7) (2006).

[43] Id.

[44] N.J. Stat. Ann. § 2A:23C–6(b)(1) (2006).

[45] See N.J. Stat. Ann. § 2C:1–9(a)(1) (2006). Generally felonies are offenses that allow for imprisonment for at least one year. Black's Law Dictionary defines a felony as, "A serious crime usually punishable by imprisonment for more than one year." Black's Law Dictionary 501 (7th ed. 2000). However, because the 14th Amendment has been interpreted as allowing for trial by jury for offenses that carry a sentence of imprisonment of at least 6 months, some states have chosen to define felonies as an offense in which imprisonment is for more than 6 months." See, e.g., Ohio Rev. Code § 2929.14(A)(4)and (5) (2006).

[46] N.J. Stat. Ann. § 2C:1–4(a) (2006).

[47] See Unif. Mediation Act § 9 (2004).

[48] See Unif. Mediation Act § 9(d) (2004).

[49] N.J. Stat. Ann. § 2A:23C–9(a)(1) (2006).

[50] N.J. Stat. Ann. § 2A:23C–9(d) (2006).

[51] See 2004 Ohio Laws File 161 (Am. Sub. H.B. 303).

[52] Ohio Rev. Code § 2710.01–2710.10 (2006).

[53] Ohio Rev. Code § 2921.22 is a reporting requirement statute which requires persons to report known felonies. It also includes a requirement for medical personnel to report gunshots wounds, stabbings, burns, domestic abuse, etc. The statute also contains a provision that immunizes a person reporting a felony from criminal and civil liability.

[54] Ohio Rev. Code § 2710.05(A)(9) (2006).

[55] Unif. Mediation Act § 6(b) (2004).

[56] H.B. 303, 125th Gen. Assem. (Ohio 2004).

[57] Interview with Nancy Rogers, Dean, Moritz College of Law at the Ohio State University, in Columbus, Oh. (Mar. 9, 2006). Nancy Rogers is known as one of the nation's leading experts on Alternative Dispute Resolution. She served as the Reporter on the Drafting Committee of the National Conference of Commissioners on Uniform State Laws when the Uniform Mediation Act was drafted. She is currently the Dean and the Michael E. Moritz Chair of Alternative Dispute Resolution at the Moritz College of Law at The Ohio State University. Rogers has been instrumental in establishing a national reputation for the Alternative Dispute Resolution Program at the University, which now ranks third in the nation according to U.S News and World Report. See Nancy Hardin Rogers, Administration Profile, available at http://moritzlaw.osu.edu/faculty/bios.php?ID=1 (last visited Nov. 21, 2006).

[58] Id.

[59] Unif. Mediation Act § 6(b) (2004).

[60] Ohio Rev. Code § 2710.05(B) (2006).

[61] Ohio Rev. Code § 2710.05(A)(7) (2006).

[62] Ohio Rev. Code § 2710.07(E) (2006).

[63] Rogers Interview, supra note 57.

[64] Id.

[65] Id.

[66] See 2005 Iowa Legis. Service Ch. 68 (S.F. 323) (West).

[67] Iowa Code § 679C.101–679C.115 (2006).

[68] See Iowa Code § 679C.106(1)(g) (2006).

[69] See Iowa Code § 679C.106(2)(a) (2006).

[70] Iowa Code § 679C.106(1)(g) (2006).

[71] Iowa Code § 679C.106(2)(a) (2006).

[72] Iowa Code § 679C.115 (2006).

[73] The mediators involved in this case were part of a court appointed mediation panel. The panel hears the dispute than awards one party a settlement. The other party must reject the settlement within a specified time frame. If the party fails to reject the settlement the settlement will be seen as accepted.

[74] Mills v. Killebrew765 F.2d 69, 71 (6th Cir. 1985).

[75] Id.

[76] See 2005 Wash. Legis. Serv. Ch. 172 (S.S.B. 517) (West).

[77] Wash. Rev. Code § 7.07.050(1)(g) (2006).

[78] Wash. Rev. Code § 7.07.050(2)(a) (2006).

[79] Unif. Mediation Act § 3(b)(1) & (2).

[80] Telephone Interview, former member of the Washington State Bar Dispute Resolution Section that helped draft the Washington Act (April 12, 2006).

[81] Unif. Mediation Act § 3 cmt 3 (2004).

[82] Wash. Rev. Code § 7.07.060(2)(a) (2006).

[83] Unif. Mediation Act § 9 cmt 3 (2004).

[84] Id.

[85]See American Bar Association, Model Standards of Conduct for Mediators, available at http://www.abanet.org/dispute/news/ModelStandardsofConductforMediatorsfinal05.pdf (last visited Nov. 15, 2006). The Model Standards of Conduct for Mediators were first promulgated in 1994, and were revised in 2005. Id. The 2005 version of the Model Standards of Conduct for Mediators has been adopted by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution. Id. A comparison of the 1994 and 2005 versions is available. See Association for Conflict Resolution, Comparison Document for the Model Standards of Conduct for Mediators, available at http://www.acrnet.org/pdfs/Comparison_Document_1994_v_August_2005.pdf (last visited Nov. 15, 2006).

[86] See 2006 Utah Laws Ch. 33 (S.B. 61).

[87] See Utah Code Ann. § 78–31c–110 (2006).

[88] Utah Code Ann. §78–31c–106(1)(g)(2006).

[89] See Vt. Stat. Ann. 12, § 5711 et seq. (2006).

[90] See Vt. Stat. Ann.12, § 5714(b)(2)(2006).

[91] D.C. Code § 16-4201–4213 (2006).

[92]D.C. Code § 16-4202(b)(4)(C) (2006).

[93] Unif. Mediation Act § 11 (2003).

[94] State v. Williams, 877 A.2d 1258 (N.J. 2005).

[95] Id. at 1268.

[96] Id. at 1269.

[97] See also Lehr v. Afflito, 889 A.2d 462 (N.J. Super. Ct. App. Div. 2006). This New Jersey case also mentions the UMA, and although the Court stated the UMA was not in effect when the dispute arose, it did analyze the privilege provisions of the UMA and held that the trial court erred when allowing the mediator to testify. Id.

[98] Mediators only have statutory immunity in the Iowa version of the UMA.