The JAMS Dispute Resolution Alert has a good article by Justin Kelly about the ten-year anniversary of the Uniform Mediation Act. Having participated in some of the deliberations during the drafting of the Act, I have been interested to see how it has been implemented.
One thing that stands out to me, even after ten years, is the lack of clarity among mediators, lawyers and the mediating public about exactly what the Act provides in terms of confidentiality. Many see the UMA as providing confidentiality of all mediation communications. In fact, what it provides is much narrower than that. The Act provides a privilege for mediation communications, strictly limiting what can be offered in court following mediation. It does not prevent parties or mediators from discussing publicly what happened in mediation. That is still governed by contract among the parties, rules for court mediation programs or other limiting forces. So, while we celebrate ten years of the UMA, be sure to think about what else you might need to do to keep your mediation off the front page.
Ah, still valuable to have a signed confidentiality agreement with all [parties, lawyers, “hangers on”, etc] running in favor of all, i.e. enforceable by any one of the signators against any other(s), including injuctive relief due to an “inadequate remedy at law” for its breach.