Confidentiality and Agreements in Mediation According to the Utah Uniform Mediation Act
Setting the Scene. Bob and Cindy have engaged in a frenzied court battle for four years. The parties were headed to litigation which would cost them their children’s tuition for four years of college. The parties were not hopeful that there would be a viable settlement. The mediator was able to perform magic as the barriers of a four-year legal battle fell, resulting in a Stipulation which resolved their case. But what if the mediation is agreed to orally but not signed or drafted in the mediation? Is the agreement binding? Is the communication in the mediation confidential? How can attorneys make binding agreements while also avoiding potential future controversy in court?
Mediation is most simply defined as a facilitated negotiation.
Utah Code of Judicial Administration Rule 4-510, Utah Ethical Guidelines Rule 104, and Utah Code Annotated Section 78-31c-101 et seq. (known as the Utah Uniform Mediation Act) all govern alternative dispute resolution.
Confidentiality Under the Utah Uniform Mediation Act. The Utah Uniform Mediation Act (UUMA) was enacted effective May 1, 2006, with Utah the eighth state to adopt the Uniform Mediation Act. Confidentiality is of utmost concern to mediators and parties so as to ensure an open and candid mediation process. The mediation is treated as a confidential communication, in which the mediators, parties, attorneys, or third-parties involved cannot testify in future court proceedings regarding the mediation [see Utah Code Ann. §§ 78-31c-108, 78-31b-8(4), (5) (2006); Utah Rules Alt. Disp. Res. Rule 103; Utah Code Jud. Admin. Rule 4-510]. Before enactment of the UUMA, in Lyons v. Booker [982 P.2d 1142 (Utah App. 1999)], the Utah Court of Appeals had held that confidentiality of the mediation process is essential for mediation to function properly, and held that no party to the mediation could disclose any comments or information acquired during mediation or in mediation-related discussions.
The definition of mediation is vast, and includes “conduct or a statement, whether oral, in a record, verbal, or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator” [Utah Code Ann. § 78-31c-102(2) (2006)]. Thus, confidentiality extends to discussions that occur in preparation for mediation, during mediation, and after mediation regarding the case.
Exceptions to Confidentiality. The privilege of confidentiality can be waived if all parties involved, including the mediator agree to waive confidentiality, if a person makes a representation about mediation that prejudices another person but only to the extent for the person to respond to the representation, or if mediation was used to commit or conceal criminal activity [Utah Code Ann. § 78-31c-105 (2006)].
The UUMA also provides for a confidentiality exception “in an agreement evidenced by a record signed by all parties to the agreement” [Utah Code Ann. § 78-31c-106(1)(a) (2006)]. Therefore, if all parties sign the agreement, it is not held confidential. Further, the UUMA provides that there is no privilege of confidentiality if (1) the proceeding is available under public meeting laws to the public, (2) there is a threat of physical harm, (3) it used in a crime of violence, or (4) needed in a claim for professional mediator malpractice [Utah Code Ann. § 78-31c-106(1)(b)–(e) (2006)]. The UUMA also waives confidentiality if “there is a need for the evidence that substantially outweighs the interest in protecting confidentiality” [Utah Code Ann. § 78-31c-106(2)(b) (2006)].
Preparing Clients Before the Mediation. How can attorneys preserve confidentiality in the mediation process, yet reach workable agreements? Clients who are well prepared for mediation seem to more easily come to agreements, saving time and money. The attorney should ensure that the parties have submitted to the opposing side the Financial Declaration 26.1 disclosures. These documents are essential in establishing the objective criteria needed for the financial issues in the proceeding. Preparation before mediation will set expectations for the party and will allow the mediation process to be productive.
Attorneys who give realistic settlement options before mediation help their clients significantly. Attorneys who tell their clients that their case is a “slam dunk” tend to create clients who are unwilling to make concessions, frustrating the process. A bargaining range that explores best- and worst-case scenarios is best in gauging mediation expectations for the parties.
Helpful Questions to Ask Before the Mediation. It is appropriate and recommended that attorneys coordinate with the mediator before the mediation about expectations in the case. This is essential for confidentiality, especially regarding communication before mediation and the mediation agreement. The following questions may be helpful:
- Will the mediation have attorneys present?
- Will the attorneys submit memoranda about issues in the case before the mediation?
- If attorney memoranda will be provided, will the attorneys drafting them for the other side, or will they be confidential and just for the mediator?
- If the attorneys will not be present at the mediation, should the parties sign the agreement?
- If the attorneys will not be present at the mediation should they be available for a phone conference before any signatures?
Should Attorneys Be Present at the Mediation? Although many client choose to bring their attorneys with them to process, some clients choose to go to mediation without their attorneys because of the increased cost. If the parties sign the agreement in the mediation, but have not conferred with their attorneys, is the agreement binding or is the conference confidential? The UUMA arguably supports that the agreement is binding whether or not parties were able to talk to their attorneys, contemplating “an agreement evidenced by a record signed by all parties to the agreement” [Utah Code Ann. § 78-31c-106(1)(a) (2006)]. Therefore, it is advisable for attorneys to proceed with caution and take preparatory steps and attend the mediation, is possible.
Most mediators do different types of mediation forums. Sometimes there will be attorneys, other times only the parties will be present. The genre of the case is important in considering whether attorneys will be present, as well as the conflict-resolution styles of the parties. Parties who are less assertive generally do better with their attorneys present.
Suggestions to Avoid Having Unsigned Agreement Protected by Confidentiality of UUMA. Many mediators prefer that the attorneys be present in the mediation. The mediation process can then be either a party-driven process with the parties performing most of the negotiation, or an attorney-driven process with the attorneys in charge. In the party-driven process, attorneys can be helpful in offering options, creating “soft reality checks,” and advising clients on their legal rights. Attorneys should be respectful of the other party, and refrain from name-calling and excessive haranguing. If the agreement is signed with the parties and attorneys present, there will be little dispute as to the binding nature of the agreement.
However, if there is no signature in the mediation, the confidentiality dilemma arises [see Utah Code Ann. § 78-31c-106(1)(a) (2006)]. One option includes having the parties sign a short agreement during the mediation with the main agreed points, then having the mediator or attorney draft a formal agreement after the mediation. If the agreement is not signed during the mediation, there is the potential for it to crumble under uncertainty afterward. This is a risk attorneys should discuss with their clients. Sometimes it is best to sign the agreement in the mediation; other times it may be best to give the client time to think about the agreement before signing it. If the agreement is not signed in mediation, there is a possibility for future negotiation and also future deadlock, and the potential agreement may become ensnared in the UMMA confidentiality clause.
These practical suggestions should help to circumvent the effect of possible confidentiality on potential, yet unsigned, mediated agreements. Attorneys should consider whether they will attend the mediation process and whether the mediation agreement will be signed in the mediation or later, after further consideration. Failure to consider these implications in preparation for mediation can have dire consequences.