The Uniform Mediation Act (UMA) establishes a consistent and comprehensive set of rules for the confidentiality and privilege of mediation communications. Created by the National Conference of Commissioners on Uniform State Laws, the UMA aims to protect these communications across various jurisdictions. It provides strong protections for the confidentiality of mediation communications, meaning that such communications cannot typically be disclosed to third parties or used in other legal proceedings. The language of the act specifically states that “Unless subject to the mediation, communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.” By standardizing the treatment of mediation communications, the UMA ensures they remain confidential and privileged, thereby enhancing the effectiveness of the mediation process.
The adoption of this comprehensive framework by other states prompts the consideration of statewide mediation rules when choosing a mediation venue. It also raises the question of whether it might be advantageous to mediate in a state that has adopted the UMA. For instance, in states that have adopted the UMA, third parties are generally barred from discovering mediation communications. To demonstrate, in the case of In Re Teligent, Inc., the Second Circuit upheld the confidentiality of mediation communications, affirming the denial of K&L Gates LLP’s motion to lift protective orders. The court emphasized that K&L Gates failed to show a compelling need for discovery of the documents, consistent with UMA standards for maintaining mediation confidentiality. 640 F.3d 53, 58 (2d Cir. 2011). In contrast, in states like New York that have not adopted the UMA, the rules regarding third-party discovery of mediation communications are less clear and may vary depending on the authority handling the proceedings.
The Act, adopted by nearly a dozen states, balances confidentiality in mediation with preventing the misuse of the process to conceal evidence that should be revealed. The UMA includes exceptions to confidentiality, such as communications in signed written agreements or those necessary to address claims of professional misconduct or criminal activity.
Below, find a list of the states that have adopted the Uniform Mediation Act:
To read the contents of the Uniform Mediation Act itself,
To read how CASTAYBERT PLLC can assist you with picking the right state for a mediation, click here.