As I reported back in 2006, a group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting to discuss the adoption of the Uniform Mediation Act (”UMA”) by the Commonwealth.

The UMA speaks to the relationship of mediation to the courts, and addresses mediation confidentiality and evidentiary privilege, together with exceptions to privilege.

In an effort to encourage public input and participation in discussions concerning the UMA and its impact on mediators, lawyers, and others, the MassUMA Working Group has turned to digital technology and the internet, launching the MassUMA Blog at www.massumablog.com.

One of the Working Group’s subcommittees, which has been meeting to explore the definition of mediator and mediator training, has just posted its findings regarding the current Massachusetts mediation confidentiality statute and the UMA, and is asking for public comment on its recommendations regarding how the UMA, if adopted in Massachusetts, should define “mediator”.

How “mediator” is defined is a matter of great consequence. Under current Massachusetts law, M.G.L. ch. 233, § 23C, a mediator is defined as “a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body”.

This means that in Massachusetts mediation communications are privileged only if the mediator meets the prescribed conditions. The UMA on the other hand defines a mediator simply as “an individual who conducts a mediation”, providing greater reassurance to parties valuing the candor and confidence mediation promises that mediation communications will remain out of evidentiary reach.

The MassUMA subcommittee, however, has other plans. If the UMA is adopted in Massachusetts, what the MassUMA subcommittee proposes is

preserving the essence of MGL Ch. 233, § 23(c) with respect to mediator definition, training, professional experience and accountability, with the addition of clarifying language.

For more information about the implications of the recommendations of the Mediator Training and Definition Subcommittee for mediation practice in the Commonwealth, and a discussion of why in my view those recommendations are misguided, please read “In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past“, published both here and at Mediate.com.

To weigh in, visit the MassUMA Blog and add your views.

In April 2006, I reported that the Boston Bar Association proposed an amendment to the Massachusetts mediation confidentiality statute, Mass. Gen. Law. ch. 233, s. 23C. That statute protects from disclosure in a judicial or administrative proceeding “[a]ny communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person.”

The BBA’s proposal sparked an immediate backlash within the mediation community. What was radical about the BBA’s proposed amendment was its change to the statutory definition of mediator. The current statute defines a mediator as “a person not a party to a dispute” who:

enters into a written agreement with the parties to assist them in resolving their disputes has completed at least thirty hours of training in mediation and either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years

The BBA’s proposed amendment would eliminate these requirements and define a mediator simply as “an individual who conducts a mediation”. At the time I condemned this proposal and argued for preserving the current definition.

As it turns out, the Boston Bar Association was right. And I was wrong.

And why that matters now is that today the mediation community in Massachusetts may be poised to make the same kind of mistake I did.

Let me explain why.

Some background first. A small group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting for the past year to consider whether to enact the Uniform Mediation Act (”UMA”) here in the Commonwealth.

The UMA defines mediation as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute”. It defines a mediator as “an individual who conducts a mediation” — as did the Boston Bar Association’s proposed language.

But a number of Massachusetts mediators who support the UMA want to replace its definition with the one currently in effect in the Commonwealth, along with some additional language.

A subcommittee of the Working Group supports the following definition:

A “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator after such training or is accountable, after such training, to a dispute resolution organization which has been in existence for at least three years.

The phrase “dispute resolution organization” means a program with which neutrals are affiliated, through membership on a roster or a similar relationship, which administers, provides and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or a government agency. A program operated by a court employee may include one or more court employees or non-employees or a combination of court employees and non- employees on its roster.

As I said, adopting this language would be a big mistake. To see why, let’s walk through each provision of the proposed language.

The written agreement requirement.

There is no doubt that good practice and common sense (not to mention the terms of at least one professional mediator liability insurance policy that I know of) dictate that mediators enter into a written agreement with their clients. Such agreements typically define the mediation process and the mediator’s role, spell out exceptions to confidentiality, and describe the respective duties and obligations of the parties to the agreement. A mediator would be foolhardy not to enter into such an agreement

However, such a definition ignores the realities of practice. For example, what about the many solo mediators who conduct their own intake or speak with parties prior to meeting them to prepare them for the mediation or to answer questions about mediation and the mediator’s role? Often parties reveal confidential information to mediators in those off-line, one-on-one conversations as a necessary part of intake and screening or the convening process. And sometimes those parties then elect to use a different neutral or even choose not to mediate their dispute at all — which means that there is no written agreement between those parties and the mediator.

Under the UMA, which does not require a written agreement, such communications in these circumstances would be privileged as they should be. Under current Massachusetts law — and the version of the UMA which some members of the Working Group support — they are not. Asking parties to sign an agreement prior to having a preliminary conversation with the mediator — even to gather information about the mediation process and its suitability for their own dispute– is both unrealistic and burdensome to all involved. I can see no rational basis for excluding from the protection of the statute these communications.

Training hours requirement.

Don’t get me wrong. I believe that all mediators should be adequately trained to serve as neutrals in the mediation of disputes. But a requirement of 30 hours of training in mediation is problematic for many reasons.

First, there is the problem of definition — what exactly do we mean when we say “training in mediation” when so many competing models of mediation practice abound — evaluative, facilitative, transformative, narrative, the list goes on? Each is normatively distinct and describes very differently the role and responsibilities of the mediator and the disputants. Some scholars and practitioners, in fact, have argued that evaluative mediation may not be mediation at all.

So if 30 hours of training is required, the question is, 30 hours of training in what kind of mediation? (To learn why this is not just a difference of semantics, read this excerpt from an article by ADR scholar and professor Michael Moffitt.)

The problem, too, lies with the number itself — whether 30 hours or 40, is that sufficient preparation pedagogically speaking? Plenty of academics would say not, that immersion in a comprehensive curriculum in a formal university setting is necessary to master conflict dynamics and understand negotiation theory.

The training requirement is premised on the notion that training prepares people to be more effective mediators. But in an unlicensed and unregulated field not only are the mediators themselves unregulated but so too are the mediation trainers. Institutions of higher learning must meet recognized accreditation standards. But in the U.S. mediation trainings and trainers are accountable to no one. So while someone may have 30 hours of mediation training under her belt, it doesn’t mean that she has had the right kind of training.

Importantly, too, the 30-hour requirement inhibits party choice of mediators — ironic when self-determination by parties is a core tenet of mediation. Such a requirement also reflects an unfortunate provincialism. It could deprive neutrals who have arrived in Massachusetts from other states or indeed from other countries of the benefits of this statute, discouraging professional and cultural diversity, as well as innovation, in what is still a young and evolving field.

Four years of professional experience.

There are so many problems with this requirement, I’m not sure where to begin. First of all, why four, a wholly arbitrary number? What is the four years based on? Why not three? Or two? Or none? Why should parties be denied the benefit of this statute solely because they selected a neutral possessed of three years, eleven months, and nine days of professional experience? Or even one day of experience, if this is the neutral the parties have selected and trust? And what about individuals who have a real aptitude for mediation? I meet a number of them each year in the trainings I conduct — people who demonstrate true talent and skill. Why should someone like that be arbitrarily excluded from the statutory meaning of “mediator” simply because they don’t have the requisite four years?

Also, what exactly is “four years”? Does that mean 40 hours each week spent mediating for 50 weeks out of every year? Does that mean one case a day? Or one case each week? Or something else?

And what constitutes “professional experience”? According to my dictionary, “professional” means “following an occupation as a means of livelihood or for gain”. What does that mean for the many volunteer community mediators who provide pro bono (or low bono) services in small claims or neighborhood settings? Don’t they count? Are they amateurs, not professionals? And maybe “four years of professional experience” doesn’t mean mediation experience at all. For example, I’m not just a mediator — I coach and train people in conflict resolution and negotiation skills. Does that work count as “professional experience”? After all, I’m using my skills and knowledge developed as a mediator to deliver those services.

Besides, if the goal is to assure public confidence in mediators, since when is length of years of experience any guarantee that a neutral is any good? A requirement like this does nothing to address or weed out incompetence.

Accountability to a dispute resolution organization which has been in existence for at least three years.

This requirement suffers from the same issues of arbitrariness that the preceding one did. Why three years? I just founded a dispute resolution firm with four partners; together we have over 75 years of experience. One of our members is a pioneering leader in the field and my other partners are no slouches themselves. But because our company is only a few months old, it doesn’t count for purposes of this statute.

Again, if public confidence in mediators is the goal, what does the length of existence of a particular organization have to do with it? The length of time in which an organization has been in existence is no guarantee of anything, including its commitment to excellence and best practices.

The problem too is one of language. What did the drafters mean by “accountable to a dispute resolution organization”? What precisely does it mean to be “accountable”? And what about “dispute resolution organization”? Conceivably this could mean an organization that provides arbitration services only but no mediation — which makes little sense if the objective is to ensure proper supervision of mediators.

This leads me to a final point. This requirement does not recognize alternative methods to build skills and develop the capacity to mediate — supervision by an experienced and qualified mentor in solo practice, for example, but one who is not part of a “dispute resolution organization”.

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Let me be clear. I share the goal of building public confidence in the mediation field that motivates those who support this definition. And I agree that establishing threshold requirements for training and credentialing mediators is critical to achieving that goal. But training and credentialing are topics so important that they warrant an independent inquiry, separate from consideration of a statute that concerns evidentiary privilege — and one that answers, not ignores, the questions I raise here.

I respect those who first wrestled with the question of how to define a mediator when the Massachusetts confidentiality statute was enacted in 1985. And I salute those striving today who wrestle anew with this issue. But we can’t shy away from asking hard questions now just because it may be politically expedient to do so or because we fear that raising those questions might show disrespect to the pioneers who came before us.

We owe it to those who will follow us.

Critics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.

In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…

The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.

The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.

(With thanks to colleague David Hoffman for alerting me to this decision.)

Ross Runkel in both his arbitration blog and his employment law blog reports this week that the U.S. National Labor Relations Board has held in U-Haul Company of California (NLRB 06/08/2006) (2-1) that a mandatory arbitration policy adopted by a non-union company violates the National Labor Relations Act.

Ross’s analysis of this decision and its limited implications can be found here. Ross points out that this decision does not invalidate U-Haul’s mandatory arbitration policy in it entirety, but only the extent to which it affects NLRB claims.

Regular readers of this blog know that I am no fan of mandatory arbitration provisions in consumer, health care, and employment agreements.

For the reasons why, please read either of these posts: “The company we keep: ADR, tort reform, and the erosion of justice,” and “30 years after the Pound Conference: reflections on ADR and justice in the 21st century“.

For a detailed exploration of the issues associated with mandatory arbitration provisions from the perspective of the U.S. Equal Employment Opportunity Commission, the governmental body charged with enforcement of federal anti-discrimination laws, please consider the “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment” issued in 1997. The EEOC, a supporter of voluntary alternative dispute resolution, takes the position that mandatory arbitration provisions in employment agreements violate the fundamental principles of employment discrimination laws in large part due to the extent to which such policies shield employers from public accountability.

An interesting report on mediation appeared this week in the U.K. online journal Legal Week by attorney Tim Ashdown, a commercial litigator and partner with the British law firm DMH Stallard.

The article describes benefits mediation offers clients in commercial litigation, including early settlement, cost savings, more direct participation by clients in their own case, and greater flexibility in creating outcomes than litigation offers. The article also draws attention to factors which can limit mediation’s effectiveness.

However, that’s not the reason why you should read this report (despite the fact that we mediators always appreciate a thoughtful, well-written article highlighting the benefits mediation offers written by someone who understands the subject matter very well indeed, as Ashdown does).

What’s most striking about this article is its discussion of a current trend in British jurisprudence for judges to sanction litigants who “unreasonably refuse” to go to mediation to resolve their disputes, particularly when a judge has recommended mediation. Ashdown cites a number of examples of cases in which courts in Britain have approved cost sanctions against parties who have refused to mediate.

This imposition of sanctions in my view undermines two of mediation’s defining principles: voluntariness and self-determination. These principles are among the chief factors which account for mediation’s tremendous appeal for disputants. The process works precisely because of this absence of coercion—parties are more willing to participate in a process which is theirs alone and in which they themselves define the outcome. Autonomy matters.

It is true that courts everywhere—in Britain and certainly here in the U.S.—promote mediation and other forms of ADR as a means of relieving the demands litigation places upon overburdened court systems. But here in the U.S., at least here in the state in which I practice, we approach the issue of sanctions in mediation very differently.

In Massachusetts, Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires court clerks to make information on court-connected dispute resolution available to both attorneys and pro se parties, and requires attorneys to

provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

However, although Rule 6 permits a court to impose sanctions on parties who fail to attend a scheduled dispute resolution session, it also prohibits courts from imposing sanctions for failure to settle and stresses the importance of ensuring that settlements are reached without coercion, particularly when parties are unrepresented by counsel:

Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties. The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

Voluntariness and self-determination, along with confidentiality, may be under assault here in Massachusetts: as some of you no doubt recall, back in January a Superior Court judge issued a decision which penalized a party for failing to heed a mediator’s advice. This decision, fortunately, has been appealed.

As I have discussed here before, this is a path we do not want to embark upon. Sanctioning parties for failing to settle through mediation will only erode support and public confidence in the mediation process. While this approach may provide incentive to parties in Britain to come to the mediation table and reach a deal, there are other and better ways to promote settlement through mediation.

AM, the Australian Broadcasting Corporation’s early morning current affairs program, reported this morning that Australian legislators and jurists may be contemplating a change to the Australian criminal justice system. Under consideration is the use of mediation in place of jury trials in criminal matters, a system already utilized in Canada. Judges would serve as mediators between the prosecution and defense counsel, although the victim and the accused would not be present for the negotiations.

For links to the transcript, or to the story in Real Audio and Windows Media formats, click here.

As discussed in an earlier posting, the confidentiality of the mediation process enables disputants to engage in candid discussions without the risk that the information shared and options considered could later be used against either party in court later on. Confidentiality, while important to maintain the trust of parties in the mediation process, is a two-edged sword and can become an issue when the mediation addresses matters of great concern to the public, which is the situation in Corvallis, Oregon.

In a story reported this morning, the Corvallis School District and the Corvallis Education Association recently negotiated a new teachers’ contract with the assistance of a mediator, whose responsibilities included the preparation and submission of a fact-finding report. The parties had agreed that the report would remain confidential unless they were unsuccessful in reaching an agreement. Oregon law apparently permits governmental officials to withhold such documents from the public. But some, including at least one parent, are requesting the School District to make the report public to shed light on the financial issues that Corvallis schools are facing. Oregon law does not prohibit the disclosure of such reports, but whether school officials and the teachers’ union will agree to release the report remains to be seen.

Two earlier posts discussed a controversial decision here in Massachusetts by a Superior Court judge in a case known as Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company (Civil Action No. 95-3079-A). In this case a judge held that a defendant’s failure to heed the advice of mediators could constitute evidence of bad faith refusal to settle. Because the decision seemingly disregards Massachusetts law which protects the confidentiality of communications made during the course of a mediation, this decision could have adverse impact on public confidence in the mediation process.

The text of the decision at the time of those postings was not available in an electronic format on the Internet. However, I have since been able to obtain a paper copy of the decision and put it into a PDF format. Click here to download it.

A spirited editorial captioned “The Importance of Keeping Mediators’ Statements Confidential” appears in the February 14, 2005, edition of Massachusetts Lawyers Weekly. Authored by Eric Green, Natasha Lisman, and Jeffrey Stern, well known figures in the Boston ADR community, and supported by other ADR practitioners including Jim McGuire and Paul Finn, the editorial expresses deep concern over Massachusetts Port Authority v. Employers Insurance of Wausau, the Massachusetts Superior Court decision discussed on this blog in a posting dated January 18, 2005. (In that case the judge cited statements made by mediators during the course of three separate mediations as evidence of a defendant’s bad faith refusal to settle for failing to heed the advice of mediators.)

The authors warn of the threat this decision poses “to the integrity and effectiveness of mediation as a method of dispute resolution” because of its potential impact on confidentiality, a defining principle of mediation practice.

As the authors point out,

…as lawyers, judges, legislatures, scholars and parties acknowledge, confidentiality of mediation is essential for its success. Settlement requires that the parties and the mediator be free to engage in candid, unbridled discussions about the case without fear that something they say in mediation can later be used in a subsequent proceeding.

To permit such subsequent use, as was done in the MassPort case, will cast a deadly chill and severely impair the mediation process and all its important benefits…The admission and use of the three mediators’ statements in the MassPort case are likewise inimical to [the Massachusetts mediator confidentiality statute] and its underlying policy and, if permitted to stand unchallenged and uncorrected, could lead to long-lasting damage to a vital instrument of policy and justice—the unhampered and confident use of private means of dispute resolution such as mediation.

Clearly there is much at stake in this case for the mediation field. The threat posed by this decision to public confidence in mediation and other forms of dispute resolution should not be underestimated. Massachusetts courts should be in the business of promoting, not undermining, the important public policy considerations that underpin the Massachusetts confidentiality statute.

Given that this case has attracted the attention of such luminaries as Eric Green and Jim McGuire, an appeal resulting from the MassPort case will undoubtedly result in a flurry of amicus curiae briefs from leaders in the ADR field protesting the MassPort decision. The ADR community is not going to take this one lying down.

The Sri Lankan Daily News reports that the Legal Aid Commission in Sri Lanka has requested that a special mediation law be extended to cover all tsunami-related disputes that will inevitably rise in the aftermath of December’s disaster. The goal here is to ensure that indigent victims would have a speedy and affordable means of obtaining redress for their losses. Mediation is certainly an effective way to accomplish such a goal, particularly in light of the fact that there will undoubtedly be numerous claims and disputes resulting from the resettlement and reconstruction process.