Testimony of Terrence T. Wheeler Regarding the Uniform Mediation Act (H.B. 303) January 15, 2004

Good morning Honorable House Judiciary Committee members. My name is Terry Wheeler and I am an attorney and mediator with the law firm of Artz & Dewhirst where I focus my practice in the areas of employment law, criminal law and dispute resolution. I am also a Co-Director of the Center for Dispute Resolution at Capital University Law School and an Adjunct Professor at Capital University Law School teaching negotiation and mediation courses. In addition, I am a member of the Association for Conflict Resolution (ACR). I am here to offer testimony regarding the proposed Uniform Mediation Act (UMA).

I want to share the perspectives of ACR on the UMA with regard to the issues of confidentiality and impartiality. ACR is a professional organization dedicated to enhancing the practice and public understanding of conflict resolution. ACR represents and serves a diverse national and international audience that includes more than 6,000 mediators, arbitrators, facilitators, educators, and others involved in the field of conflict resolution and collaborative decision-making. The ACR Resolution on the Uniform Mediation Act, which was passed by the board on April 20, 2002, and the ACR Uniform Act Principles are attached to my written testimony.

With regard to confidentiality, it is suggested that H.B. No. 303 Section 2710.07 be changed to provide that mediation communications are confidential and are not to be disclosed by mediation participants outside a mediation proceeding, unless otherwise agreed to by the parties. In addition, there should be appropriate exceptions to this general rule of confidentiality for such purposes as reporting threats of violence and complying with open meeting laws and existing mandatory reporting requirements. This approach allows the public and mediators to have a common standard and expectation regarding confidentiality, but allows the mediation participants to knowingly modify the confidentiality to the extent agreed to by them.

With regard to impartiality, it is suggested that the bracketed language set out as Section 9(g) in the original UMA passed by the National Conference of Commissioners on Uniform State Laws be included in the Ohio UMA by adding the language at Section 2710.08 (G). The bracketed language states: “A mediator must be impartial, unless after disclosure of the facts required in subsection (a) and (b) to be disclosed the parties agree otherwise.” Impartiality has been recognized as central to the mediation process by ACR, the American Bar Association Section of Dispute Resolution and the American Arbitration Association in the Model Standards of Conduct for Mediators, which is attached to my written testimony.

The modifications as stated, in the opinion of ACR members, will enhance the utility of the UMA and not detract from the uniformity of the Act.

[ View ACR Resolution on the Uniform Mediation Act (PDF) ]

[ View the ACR Uniform Act Principles (PDF) ]

[ View Model Standards of Conduct for Mediators (PDF) ]