A recent decision from the New York appellate division in Hauzinger v. Hauzinger illustrates the complex issues and implications involved in the adoption or non-adoption of the Uniform Mediation Act (UMA). In Hauzinger, the appellate division refused to enforce a confidentiality agreement that the parties entered into as part of the mediation process. The court also refused to grant a motion, made by the mediator, to quash the subpoena which required the mediator to appear for a deposition and for his records in connection with the mediation. The court noted that the UMA had yet to be adopted by the New York legislature and declined to use the case before them as an opportunity to do so.
The confidentiality of mediation proceedings is considered important to attain the level of candor that some feel is essential for the efficacy of the process. Different ways to achieve protection include privilege, evidentiary exclusion rules, and non-disclosure agreements. The drafters of the UMA adopted a privilege approach to confidentiality that can be invoked to protect mediation communications. While there are some exceptions, supporters believe the UMA will foster more candor and respect for the mediation process. Critics, however, find the privilege approach lacking and believe a broader confidentiality provision should have been utilized. Also controversial is the use of ethical disclosure requirements similar to those involved in arbitration with loss of confidentiality as the penalty for violation.
Georgia has not passed the UMA. Instead, the confidentiality of court-connected mediation is governed by the Georgia Supreme Court Dispute Resolution Rules. Under the rules there is a broader confidentiality provision for court-connected mediation with a few exceptions in the case of threats or abuse. Were Georgia to consider supplementing current laws with the UMA it would be important to take stock of exactly what protections are currently afforded, locate the gaps, and use the UMA to create broader protection. One huge gap involves private mediations which are protected only by the evidentiary exclusion rules that protect the content of settlement discussions. Something to think about. SH
Friday, November 16, 2007
Should Georgia Adopt the Uniform Mediation Act?
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2 comments:
The mediator involved in this case, Carl Vahn, posted a comment about this decision on mediate.com which sheds a revealing light on this decision:
"I am the mediator involved in this decision. Yes, I did have a comprehensive confidentiality agreement with a specific agreement not to subpoena the mediator. Neither the lower court nor the appellate court even mentioned the existance of the confidentiality agreement which was a large part of my brief. The whole decision is as published on this web site. It was brief and not even accurate. I did not ask the court to adopt the UMA. I referred to the UMA as an example of how important confidentiality is to the mediation process. I am an attorney with 22 years experience in divorce and family law and have been mediating since 1998. I completed my mediation training through the Coast to Coast Mediation Center and have undertaken substantial family mediation specific continuing education at ACR conferances. This is very poor law. I sort of expected the lower court to do what it did but I was quite confident that the Appellant Division would have a more favorable outlook on the mediation process. A group of concerned mediator/lawyers in NY are involved in considering seeking leave to appeal to the court of appeals. If you want to see a copy of my brief I will e-mail it to you if you e-mail me. Perhaps this decision will serve as a catalyst to pushing legislators to adopt the UMA."
Source: http://www.mediate.com/articles/hauzingerNY.cfm
It seems to me that the trial and appellate courts involved in this case aren't properly respecting the parties' mediation and settlement agreements. If there were some specific reasons to believe that settlement agreement resulted from duress, fraud, crime or coercion during the mediation, it seems fair to inquire into how the mediation was conducted but that's a pretty extreme case.
Would the Uniform Mediation Act produce a different result?
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