Establishes the uniform mediation act

BILL NUMBER:S139

Title of bill

An act to amend the civil practice law and rules, in relation to establishing the uniform mediation act

Purpose

This bill would enhance the level of confidentiality afforded to communications made in the context of mediation, require mediators to disclose conflicts of interest and promote uniformity among state mediation laws.

Summary of provisions

A new Article 74 would be added to the Civil Practice Laws and Rules creating a privilege against the disclosure of communications made in the Course of a mediation; creating a baseline presumption of confidentiality for such communications; setting forth definitions, scope, exceptions, and waivers; setting forth what a mediator may and may not disclose; requiring a mediator to disclose conflicts of interests before accepting a mediation; permitting attorneys or others to represent parties in mediation; guiding construction of the Act by consideration of the need for uniformity among the States; and providing effective dates as to existing and future mediations; and providing for severability.

Existing law

Current law provides for mediation confidentiality in some circumstances. For example, mediation communications are confidential in the Community Dispute Resolution Centers Program, under Article 21-A of the Judiciary Law. Under CPLR 4547, offers to compromise are inadmissible to prove the validity or value of claims, or to prove liability for such claims. Various courts have established confidentiality rules to govern the mediations they order.

Justification

Mediation provides a speedy and inexpensive method of resolving disputes. New York's state-funded Community Dispute Resolution Centers produced voluntary agreements in 86 percent of the 26,472 cases they handled in FY 2000-2001. NASDAQ, the Better Business Bureau, the American Arbitration Association, and other private dispute-settlement organizations also show impressive success rates. But mediation could and would serve a far greater population of New Yorkers, and serve it better, if participants could be assured of the confidentiality of their mediation communications. Open and honest communication produces better mediation outcomes. The more candidly participants express their needs and preferences, the more effectively they can produce mediation solutions. Although current law provides for confidentiality in some mediations, practitioners generally cannot ascertain whether or not the courts will protect the confidentiality of their mediation communications, since no New York State law currently governs mediation in general, or provides a clear baseline for mediation confidentiality.

The Uniform Mediation Act provides precisely that: a clear baseline for mediation confidentiality. The increased use of mediation, which

would almost certainly follow upon enactment of the UMA, would reduce the costs of disputes for individuals and businesses in New York.

Legislative history

S.683 of 2011 01/05/12 REFERRED TO CODES

Fiscal implications

None.

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become a law and shall apply to all agreements to mediate and mediations pursuant to a referral entered into on or after such effective date.