LD 1295, Page 2 - 121th Legislature, FIRST REGULAR Session

the mediation process will be fair. Fairness is enhanced if it

will be conducted with integrity and the parties' knowing

consent will be preserved. See Joseph B. Stulberg, Fairness and

Mediation, 13 Ohio St. J. on Disp. Resol. 909 (1998); Nancy A.

Welsh, The Thinning Vision of Self-Determination in Court-

Connected Mediation: The Inevitable Price of

Institutionalization?, 6 Harv. Neg. L. Rev. 1 (2001). The Act

protects integrity and knowing consent through provisions that

provide exceptions to the privilege (Section 6), limit

disclosures by the mediator to judges and others who may rule on

the case (Section 7), require mediators to disclose conflicts of

interest (Section 9), and assure that parties may bring a lawyer

or other support person to the mediation session (Section 10).

In some limited ways, the law can also encourage the use of

mediation as part of the policy to promote the private

resolution of disputes through informed self-determination. See

discussion in Section 2; see also Nancy H. Rogers & Craig A.

McEwen, Employing the Law to Increase the Use of Mediation and

to Encourage Direct and Early Negotiations, 13 Ohio St. J. on

Disp. Resol. 831 (1998); Denburg v. Paker Chapin Flattau &

Klimpl, 624 N.E.2d 995, 1000 (N.Y. 1993) (societal benefit in

recognizing the autonomy of parties to shape their own solution

rather than having one judicially imposed). A uniform act that

promotes predictability and simplicity may encourage greater use

of mediation, as discussed in part 3, below.

At the same time, it is important to avoid laws that
diminish the creative and diverse use of mediation. The Act
promotes the autonomy of the parties by leaving to them those
matters that can be set by agreement and need not be set
inflexibly by statute. In addition, some provisions in the Act
may be varied by party agreement, as specified in the comments
to the sections. This may be viewed as a core Act which can be
amended with type specific provisions not in conflict with the
Uniform Mediation Act.

The provisions in this Act reflect the intent of the
Drafters to further these public policies. The Drafters intend
for the Act to be applied and construed in a way to promote
uniformity, as stated in Section, and also in such manner as
to:

promote candor of parties through confidentiality of the
mediation process, subject only to the need for disclosure
to accommodate specific and compelling societal interests
(see part 1, below);

encourage the policy of fostering prompt, economical, and
amicable resolution of disputes in accordance with principles
of integrity of the mediation process, active

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