Washington, D.C. - Oct. 22-24, 1999

Efforts to assure that the public, and the press, know what happens during voluntary mediation appeared to gain some ground in October during deliberations of an independent body drafting a uniform law on mediation.

A joint commission of the American Bar Association and the National Conference of Commissioners on Uniform State Laws (NCCUSL) on the Uniform Mediation Act, meeting Oct. 22-24 in Washington, agreed that any proposal would exempt public bodies and public officials from the right to have the proceeding kept confidential. The group has generally agreed that private parties can hold their proceedings, and the outcome, out of public view.

In the drafting process, the commission agreed that the final document would include language that "would statutorily assure media access to mediations on matters of public policy in which the government is a party." The success in keeping the public's business in the open remains uncertain, until the commission completes its drafting work sometime next year.

The drafting body will meet in December in California, and again in January in Washington to refine the language and changes could still be made. The final adoption of the draft law won't be made until next spring or summer, and then the parent bodies must adopt the language, a process unlikely to be completed until early 2001.

The current draft considered by the commission did not identify or mention public bodies, public officials or even public policy-related issues. Drafters suggested that language in the definition, where "mediation communication" is introduced, would cover such instances. Such communications is part of the mediation process, the definition explains, "unless the disputant would not be reasonable in expecting that the communications is confidential." That language is aimed at those who hold office, whose work and actions would be conducted, in public view.

Throughout the draft discussion in Washington, the commission focused almost entirely on the rights and in some cases the privilege of those involved in the mediation to have the process and the resolution remain confidential. Also, considerable time was spent on the issue of mediator liability should one of the parties disagree with the final outcome.

Phil Carroll, a member of the NCCUSL Committee and a senior partner at the Rose Law Firm in Little Rock, was the only commission member to raise the issue of public officials and public bodies. He agreed that disputes involving a public office holder should be conducted in public. He questioned, however, whether any action involving that official should be subject to disclosure. For example, he said an office holder might become embroiled in a landlord-tenant dispute as a building owner, and such actions should not be open to the public.

The Society of Professional Journalists, and other journalism groups, advocated language that would make clear that public bodies and public officials would be ineligible for confidential treatment. Many lawyers are uncomfortable with open mediation, noting that the concept as currently practiced encourages confidentiality. However, in the current use nearly all mediation is review by a judicial body, which passes judgement.

The draft also includes language that would allow disclosure, when "a court determines, after a hearing, that disclosure is necessary to prevent a manifest injustice of such magnitude as to outweigh the importance of protecting the confidentiality of mediation communications."

Such a standard is considered too high, and therefore almost impossible to meet. In effect, conditions would rarely allow a mediation to be opened, even when the public interest or public bodies are involved.

Instead of the "manifest injustice" standard, SPJ has proposed that the court determination be couched in terms of "the public's interest," which would allow issues about public decision-making to be disclosed.

SPJ's lawfirm, Baker & Hostetler, prepared draft language that will be submitted, in writing, to the drafting commission.

In addition, based on preliminary discussions with the reporters who are drafting the language, it also appears that some progress is being made in getting the "public bodies" language into the final draft. The ABA Section of Administrative Law and Regulatory Practice, succeeded in winning the

commission's ascent to incorporate such language in the draft.
The drafting project has established a Web site at http://www.stanford.edu/group/sccn/mediation/ where a revised copy after the Washington meeting will be posted. Richard Reuben, senior research fellow at Harvard Law School, and Nancy Rogers, professor of law at Ohio State University College of Law, are legal resources and reporters for the drafting committee. Comments and suggestions should be sent to both of them at rcreuben@law.harvard.edu and nrogers@osu.edu.

Steve Geimann, former national president of the Society, expects to represent SPJ and other media interests when the drafting commission returns to Washington. He's an editor at Bloomberg News in Washington (202-624-1960, sgeimann@bloomberg.net)