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Uniform Mediation Act Affects Dispute Resolution


Q.: What is the Uniform Mediation Act?
A.: 
Ohio’s Uniform Mediation Act (UMA), which became effective in 2005, affects many types of mediation and is designed to provide for a uniform set of legal rules regarding mediation practices from state to state. The UMA can be found in chapter 2710 of the Ohio Revised Code, sections 2701.01 to 2710.10.

Q.: Why should I be concerned about the UMA?
A.: 
Mediation is being used more and more, both in and out of Ohio’s courts, and it is likely that even more disputes and cases will be mediated in the future. Knowing how the UMA affects mediation will be increasingly important for those who are participating in mediation.

Q.: What types of mediation are covered by the UMA?
A.: 
The UMA defines mediation broadly as any process where a third party neutral helps the disputing parties negotiate better. What is not covered by the UMA are collective bargaining in the labor field, school peer mediations, labor dispute mediations, court settlement conferences conducted by a judicial officer (judge or magistrate) who might make a ruling in the case, or mediations in a correctional institution for youths.

Q.: Who can be a mediator under the UMA?
A.: 
As defined in the UMA, a mediator is anyone who conducts a mediation. A mediator does not have to have special credentials or a license, but a mediator must be impartial.

Q.: In essence, what does the UMA do?
A.: 
The primary purpose of the UMA is to protect the private and confidential nature of discussions before, during, and after a mediation. This is important because, when people don’t talk openly with the mediator and each other, the chances of a successful settlement drop. The UMA protects the privacy of the mediation discussions, and thus helps everyone reach a mutually beneficial resolution.

Q.: How does the UMA protect the privacy of talks in a mediation?
A.: 
The UMA creates a legal privilege for “mediation communication” (any statement made before, during, or after a mediation). A “privilege” is the legal ability of one person to block another person’s testimony from being introduced in a later court proceeding. The mediator, all parties, and any other people present at the mediation (such as attorneys) have a privilege in varying degrees under the UMA to stop other people from revealing what was said at a mediation.

Q.: Can a person give up the protection of the UMA?
A.: 
Yes, a person can waive or give up his or her mediation privilege.   It is important to remember, however, that all parties to a mediation are protected by the UMA.  Even if all but one party involved in the mediation have given up the privilege, that one party still may choose to use the privilege to block certain testimony.

Q.: Is everything said in a mediation protected by the legal privilege in the UMA?
A.: 
No, certain topics or types of statements are legally excluded.  For example, discussion regarding abuse of children or the elderly, crimes or threats of violence, and materials subject to public records laws, and signed settlement agreements are not protected from disclosure by the legal privilege provided under the UMA.

Also, the UMA does not stop or limit communications outside of court to third parties. If someone is concerned about protecting personal information or trade secrets, for instance, the parties can enter into a confidentiality agreement before a mediation starts.

Q.: What can a mediator tell a judge if the case is in court?
A.: 
A mediator cannot tell a judge much at all. The UMA limits a mediator to telling a judge  the following: whether or not the mediation occurred, who attended, and whether or not the case was settled. Beyond those points, a mediator cannot report, analyze, evaluate, or make findings or recommendations to a court or judge.

Q.: Does a mediator have any obligations under the UMA?
A.: 
Yes. A mediator must look into and reveal any potential conflicts of interest that might affect his or her impartiality, and, if asked, must disclose his or her qualifications as a mediator.

Q.: Where can I learn more about the UMA?
A.: 
The Internet has many resources on the UMA in Ohio. You can read the full text of the UMA at http://codes.ohio.gov/orc/2710. The Ohio Commission on Dispute Resolution and Conflict Management has material on the UMA at http://disputeresolution.ohio.gov/cc/confidentialitystatute.htm. The Ohio Supreme Court has information on the UMA at http://www.supremecourt.ohio.gov/ (type "Uniform Mediation Act" in search box).

2/20/2009
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was prepared by Harold Paddock, Columbus mediator and arbitrator.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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