Category Archives: Uniform Mediation Act

Mediators pull plug on efforts to enact Uniform Mediation Act in Massachusetts

In 1985, the Massachusetts legislature enacted a statute creating a privilege for mediation communications.

As it turned out, despite the good intentions of its makers, it proved to be a deeply flawed statute. It fails to specify exceptions to privilege or identify how or by whom the privilege could be waived. It creates uncertainties about what kind of mediation communications are protected from disclosure, since the language suggests that pre-mediation communications may not be covered, particularly if there is no written contract between mediator and parties. It is also not clear from the language of the statute whether the law prohibits disclosure of out-of-court statements.

Controversially, the statute applies only to mediations conducted by mediators as the statute defines them:

…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 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 definition, as even a superficial reading reveals, is vague, raising more questions than it answers. It is also arbitrary and baseless: the qualifications for mediators shoehorned into the statute — the 30 hours of training, four years of professional experience, and three years in existence for a dispute resolution organization — were plucked from thin air by the drafters.

Over 20 years later, in September 2006, a group of mediators convened at Suffolk University Law School to address these statutory shortcomings and consider whether the Uniform Mediation Act might be a better choice for Massachusetts practitioners. Calling ourselves the MassUMA Working Group, we met numerous times between September 2006 and April 2009  to discuss the UMA and consider whether to adapt it to meet the needs of Massachusetts mediators and consumers of mediation services. The UMA specifies the parameters of privilege, protecting mediation communications from the first phone call to the mediator’s office to the final hand shake. It distinguishes among mediators, parties, and non-party participants for purposes of determining how privilege may be waived, and it specifies exceptions. It also leaves decisions about disclosure of statements outside of court – confidentiality – in the hands of the parties. Finally, the UMA avoids the definitional pitfalls of the Massachusetts statute, defining a mediator merely as “an individual who conducts a mediation”. Among our group, the UMA had supporters (a sizeable majority) and detractors (a vocal and concerned minority).

Regrettably, despite the arduous efforts over many long months of the Working Group and the several subcommittees convened to address specific issues, the Working Group, unable to reach consensus, agreed last month to disband and put its efforts on hold for now .

What happened? A detailed post-mortem I leave in the hands of our field’s historians. But other fracture points appeared, apart from the obvious division between supporters and critics of the UMA. Among the several causes of impasse was this: the Working Group was stymied by its inability to agree upon a definition of mediator, since many could not accept a statute that did not specify minimum qualifications for mediators and that defined a mediator simply as one “who conducts a mediation”. The minority view, held by me and a handful of others, was to accept the UMA’s definition and take up the discussion of credentialing in a different venue. The great majority of my colleagues preferred to graft the old definition (despite its demonstrated shortcomings) onto the UMA, with some small changes, including increasing the number of hours of training specified from 30 to 40. That they did so in the face of evidence that these arbitrary requirements have no empirical basis is something that I still can not understand.

Taking time off to regroup and rethink though makes sense, given how divided we remained at the end and how many serious questions were left unresolved. Change of this magnitude comes slowly.  There is always next time, and ultimately we will get there –  through a carefully designed process, the full engagement and participation of all affected communities across the Commonwealth, and with informed deliberation.

Time, I hope, will bring clarity to all of us, and perhaps, dare I say it, a change of mind.

Getting out of neutral: a fresh look at mediator impartiality

time for mediators to shift out of neutralEfforts here in Massachusetts to enact the Uniform Mediation Act have run aground. Deadlocked over one vexing question – how to define a mediator  – the MassUMA Working Group (as those of us involved most directly in those efforts  call ourselves) is poised to take some time off to regroup and rethink.

An active member of MassUMA since its founding in September 2006, I’ll provide a post mortem here some time down the road. But probing and weighing the UMA has produced questions beyond the one that has confounded MassUMA participants. Although I support the UMA (the original version drafted by the National Conference of Commissioners on Uniform Laws and not the one my MassUMA colleagues proposed), one of these questions in particular has been nagging me. Here it is.

Section 9(g) of the Uniform Mediation Act states that “A mediator must be impartial, unless…the parties agree otherwise”.  What on earth does this mean? How can anyone actually be impartial – particularly with so much evidence from cognitive psychology and the social sciences to indicate that it is not humanly possible to be free from bias?

Recognizing this problem, the Commissioners on Uniform Laws placed brackets around Section 9(g) “to signal that it is suggested as a model provision and need not be part of a Uniform Act.” Some of us in the MassUMA Working Group would have been happy to comply and dispense with this provision, since its violation bars the mediator from asserting a privilege for a mediation communication. Others, however, argued that impartiality is essential to mediation, among its defining qualities, and therefore wanted the provision to remain.

But the question stands: how can anyone ever be impartial? How can we reasonably, rationally expect it of anyone – and make the ability to claim a privilege conditional upon it?

And then I read the message mediation giant Lee Jay Berman posted to an ADR listserv, which barrister and mediator Geoff Sharp helpfully published on his blog.  Berman muses about impartiality and concludes that it is no Holy Grail but only fallacy. He describes instead a wholly different quality he seeks to embody at the mediation table:

When I think of neutral, I think of a car revving as loud as it wants to, but with no ability to move forward.

When I think of impartial, I think of driving the car down the middle of the road and keeping it from going too far to either side.

But how I see my role is what I call Mutually Partial. I see myself as a coach for each participant, helping them get as much of what they came for as I can. I am partial, when caucusing with the plaintiff, in helping them strategize to maximize their take-away, and to make sure they’re getting EVERYTHING they came there to get (non-economic, emotional, closure, big picture of their life, etc.). I am partial when working with plaintiff’s counsel to get what s/he wants (money, reputation, referrals, etc.). I am partial when caucusing with the defendant as I help them to strategize how they play their given hand of cards, evaluate their risks, consider their overall big picture and making sure they have what they need in their file to support the settlement they’re authorizing. I am partial when working with defense counsel to ensure that they strategize and counsel their client well, that they look good, and get a settlement that they can recommend at the end of the day. I help people find their reasons for doing what they need to do to settle. I serve as a negotiation coach more than a message carrier. I lend my expertise and creativity as I offer them options and choices. I clarify for them all what’s going on in their negotiation from my neutral view. Basically, I help everyone come out of it OK.

So, I am not neutral. I never claim to be. If I were neutral, I could not offer them as much value as I do. I just offer it mutually.

Exactly. Well said. So, what do you think, mediators, are you ready to shift out of neutral? It’s what being in the driver’s seat is all about.

Massachusetts Uniform Mediation Act: time to make your opinion count online or in person

MassUMA Working Group seeks comments on proposed Uniform Mediation ActSince 2006, a group of mediators in Massachusetts, designating itself the MassUMA Working Group, has met regularly to discuss the adoption of the Uniform Mediation Act (“UMA”) in the Commonwealth.

The UMA protects communications made during a mediation and establishes a limited evidentiary privilege that prevents the use of those communications in subsequent legal proceedings.  The UMA could replace the current law in Massachusetts, M.G.L. ch. 233, § 23C.

During the course of two years, the MassUMA Working Group through the efforts of its subcommittees has produced recommendations and most recently an amended version of the UMA for consideration and public commenting.

The Working Group has scheduled the following public meetings to provide information about the UMA and invite input from mediators and the general public:

(FYI, I’ll be facilitating the meeting on November 24 in Greenfield.)

In addition, two meetings of the MassUMA Working Group, also open to the public, will be held on the following dates:

  • Thursday, December 4, 2008, 3-5 p.m.
  • Tuesday, December 16, 2008, 2-5 p.m.

These meetings will take place at the offices of the Federal Mediation and Conciliation Services, 99 Summer Street, Boston, MA. If you cannot attend in person, you can still participate by phone by calling 712-429-0690, enter access code 317609 and wait for other participants.

The public (that’s you) is strongly encouraged to comment online on the amended version of the Uniform Mediation Act proposed by the MassUMA Working Group, known as the UMA One Text.

If you’re interested in my two cents, you can read my objections to the amended version in an article I posted a year ago, “In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past. I’m planning to revisit and refine those objections in an upcoming post soon.

In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past

Massachusetts mediators poised to make mistake in considering new language for Uniform Mediation ActIn 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. My four partners are respected leaders in the field. 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”.

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.

Newly established working group announces first meeting to discuss adapting Uniform Mediation Act to fit needs of Massachusetts mediators

Group proposes adapting Uniform Mediation Act to meet needs of Massachusetts mediatorsSeveral months ago I reported that the Boston Bar Association (BBA) had announced that it had drafted a proposed amendment to the Massachusetts statute protecting mediation confidentiality.

Now another group is forging off in a new direction. The Massachusetts Uniform Mediation Act Working Group (MassUMA) has extended an open invitation to mediation organizations and private practitioners to explore the feasibility of replacing the Massachusetts mediation confidentiality statute with an adapted version of the Uniform Mediation Act.

The first meeting will be held on Friday, September 8, 2006, at Suffolk University Law School, 120 Tremont Street, Boston, Massachusetts from 9:30 a.m. to 11:00 a.m. in the 4th Floor Faculty Dining Room. Please RSVP with Israela Brill-Cass by email or by phone at 617-439-4700 no later than Friday, September 1, 2006.

More information about MassUMA is available at its web site at