Lead Article: Uniform Mediation Act Brings Changes to Ohio Law

By Professor Ellen E. Deason

Early this year, Ohio became the fourth state to enact the Uniform Mediation Act (UMA), joining Nebraska, Illinois and New Jersey at the forefront in protecting against disclosure of communications made in mediation. The new law will go into effect October 29, 2005 and the state has launched a training effort to prepare mediators, advocates and parties for the change. A brief synopsis of Ohio's UMA follows. [1]

Scope

The Ohio UMA governs mediations in a wide range of contexts, from court-annexed programs to community mediation to proceedings by private contract. A mediation is within the scope of the Act if it is required by statute, ordered by or referred from a court, a product of an agreement by the parties and the mediator, or conducted by a person who holds him- or herself out to be a mediator. Thus, the UMA applies to mediations in both neighborhood disputes and complex proceedings with parties represented by attorneys. There are a few exceptions to the Act's coverage. The primary processes that are not covered are mediations in the context of collective bargaining and most union grievances, settlement conferences conducted by a judge who might rule in a case, and school mediations among students.

The Act protects against the disclosure of mediation communications in legal proceedings, which are defined broadly to include judicial, administrative or arbitral adjudicative proceedings, and legislative hearings. The "mediation communications" that are protected are likewise defined broadly and may be oral statements, written documents, or nonverbal gestures or actions. These communications are protected when they take place during a mediation session, or if they are made for purposes relating to mediation, without time limitation.

Ohio's new statute distinguishes between protecting mediation communications from disclosure in legal proceedings and the more general concept of confidentiality outside such proceedings. Disclosures in proceedings are limited by mediation privileges, described below. In contrast, the Act does not impose confidentiality outside legal proceedings. The rationale for this is that expectations of parties vary greatly and there would be a danger that a party unaware of the statute might inadvertently become subject to civil liability for violating a broad duty of confidentiality. In Ohio, confidentiality in this broader sense is limited by public meeting and public record laws and may be covered by court rules. Subject to these requirements, however, parties may agree to expand confidentiality for a mediation. For example, they may decide to limit their ability to reveal certain information or prohibit disclosures to the press, family members, neighbors, or more generally.

The Privileges

The core of the UMA's protection against disclosures is contained in three mediation privileges. Under these privileges, mediation communications are "not subject to discovery or admissible in evidence in a proceeding" unless the holder of the privilege waives it or the person asserting the privilege is precluded from doing so. Ohio Rev. Code § 2710.03(A). The exercise of the privilege is in the control of each holder, who may waive his privilege if he does so expressly, either in writing or by an oral statement during a proceeding.

Mediation parties - persons attending the mediation whose agreement is necessary to resolve the dispute - hold a broad privilege that covers all mediation communications (subject to the exceptions discussed below). Mediation success is rooted in the sharing of information, which this privilege encourages by allowing each party to ensure that statements in mediation cannot be used against them in subsequent legal proceedings. Parties may refuse to disclose any mediation communication and may invoke their privilege to prevent disclosure by others.

The mediator also holds a privilege. She may refuse to disclose any mediation communication and may prevent others from disclosing her mediation communications. This privilege is designed to protect the neutrality of the process by immunizing mediators from any obligation to testify to a party's detriment.

A third privilege is held by nonparty participants in a mediation - persons who participate other than the parties and the mediator. These may be experts, interpreters, or support persons accompanying a party at the mediation. This privilege is designed to encourage nonparties to participate in mediation without fear that their statements may be used later to impeach them. It is limited to communications made by the nonparty participant, who may refuse to disclose his own communications and also prevent others from disclosing it.

Exceptions to the Privileges

There are exceptions in the UMA for specified types of mediation communications and for certain types of proceedings. For ease of identification, they can be grouped into five general categories.

Public Records and Open Meetings - There is no privilege for a mediation communication that is available to the public under the Public Records Act or that was made in a mediation session that was open to the public or required to be open under the Open Meetings Act.

Threats and Crimes - There is no mediation privilege for a communication that falls within the narrow category of imminent threats or plans to inflict bodily injury or to commit a crime of violence. In addition, there is no privilege for a mediation communication that is intentionally used to plan a crime, attempt a crime, or conceal an ongoing crime. While neither of these exceptions covers admissions of past crimes, in Ohio there is no privilege for mediation communications that reveal that a felony has been or is being committed. The Revised Code establishes a duty to report felonies, subject to other privileges such as the attorney/client privilege.

In addition, the mediation privileges may not be available in a criminal proceeding. There is no privilege when a mediation communication is sought or offered in evidence in a criminal proceeding involving a felony or in a delinquent child proceeding if the offense would be a felony if committed by an adult. In misdemeanor proceedings, the privilege is applicable unless the judge finds that the evidence is not otherwise available and disclosure is necessary to prevent a manifest injustice. In order to protect the communication from disclosure during this decision-making process, the judge must make these findings based on an in camera hearing.

Furthermore, a mediation itself may not be used to further a crime. Any person who uses a mediation to plan a crime or commit a crime is precluded from using a mediation privilege to shield that activity.

Professional Misconduct - There is no mediation privilege for communications regarding a claim of professional misconduct filed against a mediator. This exception allows grievances to be lodged against mediators and allows them to defend themselves. There is also no mediation privilege for communications that support or refute claims of professional misconduct filed against a mediation party, nonparty participant, or party representative. This exception is similar except that a mediator cannot be required to provide evidence on communications relating to other's misconduct.

Child and Adult Protection - There is no mediation privilege when a proceeding is initiated by the state or a child protection agency and it is alleged that a child is abused, neglected, or dependent. In other proceedings, there is no mediation privilege for communications sought or offered to prove abuse, neglect, abandonment, or exploitation if a child or adult protective services agency is a party to the proceeding. This latter exception does not apply, however, if the case was referred to mediation by a court and a public agency participated in the mediation. Otherwise, courts would be unable to establish effective mediation programs for issues that arise out of abuse.

Agreements reached in mediation - There is no mediation privilege for written agreements signed by all the parties. This exception allows enforcement of agreements that relate to mediation or that resolve a mediated dispute.

In addition, under certain circumstances, mediation communications may be disclosed in proceedings on a claim to rescind, reform, or prove a defense to liability on a contract. The mediation privileges do not apply if the judge finds, after a hearing in camera, that the information is not otherwise available and disclosure is necessary in the case to prevent a manifest injustice.

Separation of Mediation from Adjudicatory Functions

To protect the neutrality of the mediation process and the integrity of courts and other decision-making bodies, the UMA separates mediation from adjudicatory functions. Mediators are not permitted to make a report or recommendation to any court or agency that may make a ruling on the dispute that is the subject of the mediation, with limited exceptions.

A mediator may disclose certain information on the status of a mediation: that it took place, that it has terminated, who attended, and whether or not a settlement was reached. A mediator may also disclose information to the decisionmaker as agreed by the parties. Communications evidencing abuse or neglect may be disclosed to the responsible agency. And finally, the UMA does not alter a judge's statutory authority to order a mediation report from the mediator and parents when ordering a mediation to determine parental rights and responsibilities in a divorce case.

Opportunities for Informed Party Choice

Many provisions of the UMA operate by default but can be altered by agreement of the parties. In addition to the choice the parties have to waive their privileges, they may agree in advance that the privileges in the UMA will not apply to all or part of a mediation. As discussed above, they may agree on confidentiality measures that apply outside the context of disclosures in legal proceedings. The parties may also set aside the limitations on communications between the mediator and decisionmaker by agreement.

The parties' ability to choose a mediator is improved by new provisions that require a mediator to inquire into facts that might create doubt about the impartiality of the mediator and to inform the parties of any such facts. A mediator must also disclose his qualifications if requested by a party. Mediators are obliged to remain impartial, although the parties may agree otherwise.

Finally, a party's participation in a mediation may be enhanced by the presence of a support person. The UMA establishes a right to bring an attorney or other representative to participate in a mediation session.

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The UMA is more comprehensive than the statute it replaces in Ohio. While it creates a challenge for parties, mediators, attorneys, judges, and others who need to learn to use a new set of provisions, it improves on the old provision by drawing on several decades of experience with developments in the mediation field. Ohio's adoption of the UMA is also a step toward uniformity in the law in a context where predictability for parties involved in interstate transactions and disputes is important and the law's role in increasing that predictability should contribute to the growth and use of mediation.

[1] A copy of the statute, Amended House Bill 303, 125th General Assembly, is available at http://www.legislature.state.oh.us/bills.cfm?ID=125_HB_303. It will be codified at Ohio Revised Code §§ 2710.01-2710.10. The version adopted by the National Conference of Commissioners on Uniform State Laws and the American Bar Association, which differs only slightly, is available at http://www.law.upenn.edu/bll/ulc/mediat/2003finaldraft.htm with helpful explanatory material and commentary.