The Uniform Mediation Act:
Answers to General Questions for Lawyers
Mediation - Arbitration
Volume 1, Number 1 - March 2006
Consider this situation: your motion for a protective order is scheduled for a hearing on an expedited basis. The fact pattern is as follows: Your client is an Ohio-based distributor of farm machinery and has been sued in Ohio by a Nebraska agri-business for selling allegedly defective soybean harvesters manufactured in New Jersey by a co-defendant. The parties and counsel retained the services of a noted Chicago mediator, who tried unsuccessfully to settle the case pre-suit in a conference call with everyone participating. Nebraska counsel has noticed the mediator for a deposition in three days and intends to ask questions about statements made by the party representatives in the conference call. You as an Ohio counsel, object and have moved for a protective order, and obtained this expedited hearing. Is there a conflict of laws question? Which state's laws regarding mediation apply? Can the mediator object and refuse to be deposed? Where do you turn for authority?
While this hypo is a bit farfetched, there is now a statute in effect which deals with these issues and was passed in some measure to cover this type of fact pattern. As of this writing, Ohio, New Jersey, Nebraska and Illinois have adopted a statute that covers this particular hypothetical.
Effective October 29, 2005, issues of mediation confidentiality and privilege will be governed in Ohio by the Uniform Mediation Act or UMA. Just like the more famous Uniform Commercial Code, the UMA establishes a level and standardized playing field in many states for the practice of mediation and specifically the issue of what is and is not confidential in mediation. Codified as RC Section 2710.10 et seq, the UMA defines mediation, indicates what types of mediation are and are not covered by its terms, creates a mediation privilege, and states who may exercise the privilege.
To borrow freely from the journalism profession and use an organizing principle for completeness and comprehension, we can dissect the new statute with the Five W's and an H. For those of you unfamiliar with journalism, those letters stand for Who, What, Where, When, Why, and How. To find out more about the 5 W's and an H of the UMA, go to www.KnepperAssociates.com/uma.htm.
Excerpts reprinted from Ohio Commission on Dispute Resolution and Conflict Management website.
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