Analysis Of The Uniform Mediation Act

After receiving the subpoena, I would immediately take a look at Section 4 of the Uniform Mediation Act concerning the privilege against disclosure, admissibility and discovery. The UMA provides certain actors connected with mediations with a set of privileges for “mediation communications.” When such privileges attach, they have the effect of making the material in question “not subject to discovery or admissible in evidence” unless the privilege is waived or a specific exception applies. Therefore, looking at the Act will be my first move to analyze how I should respond to the subpoena. Not only will I assess my own privilege under the Act, but I think it is important to evaluate the parties’ privileges, as it is probably safe to assume the attorney for the new case has subpoenaed Baby Beds, Inc. and the representative for C.J. as well.

In this case, because both Baby Beds, Inc. and C.J. are mediation parties, they clearly hold a privilege regarding the mediation communications in question under UMA Section 4(a). The privilege provides that each “may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.” Assuming the subpoena is trying to compel the parties to testify something that would qualify as a “mediation communication,” (I think the Skype oral conversations would be considered such) the parties will be able to successfully resist providing that information. They may however, on consent of each party waive their privilege under Section 5 of the UMA. The representatives for C.J. might be willing to waive their privilege in order to help out another family in a battle against the manufacturers that caused so much harm to their family. On the other hand, they might refuse to waive their privilege in order to avoid digging up the painful past.

Regardless of whether the representatives for C.J. decide to waive their privilege and allow for disclosure of mediation communications, it very unlikely that Baby Bed, Inc. will do the same. Seeing that Baby Bed, Inc. is already receiving considerable backlash from the media, they would probably be reluctant to open up the past and expose themselves to more media scrutiny which is certain to happen with the disclosure of the mediation communications. Therefore, I need to carefully balance the interests of the parties before examining how to respond to the subpoena.

Even if all the parties waived their privilege under UMA Section 5(a), I still must decide, as the mediator, if I am willing to waive my privilege as the mediator. Similar to the parties, under Section 4(b)(2), a mediator, “may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.” Therefore, as the mediator I hold a privilege I can exercise. As the mediator I would probably see little to gain from waiving my privileges and testifying. There is

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