LD 1295, Page 22 - 121th Legislature, FIRST REGULAR Session

certainty whether one is engaged in a mediation or some other

dispute resolution or prevention process that employs mediation

and related principles. See, e.g., Ellen J. Waxman & Howard

Gadlin, Ombudsmen: A Buffer Between Institutions, Individuals, 4

Disp. Resol. Mag. 21 (Summer 1998) (describing functions of

ombuds, which can at times include mediation concepts and

skills); Janice Fleischer & Zena Zumeta, Group Facilitation: A

Way to Address Problems Collaboratively, 4 Disp. Resol. Mag.. 4

(Summer 1998) (comparing post-dispute mediation with pre-dispute

facilitation); Lindsay "Peter" White, Partnering: Agreeing to

Work Together on Problems, 4 Disp. Resol. Mag. 18 (Summer 1998)

(describing a common collaborative problem solving technique

used in the construction industry). This problem is exacerbated

by the fact that unlike other professionals - such as doctors,

lawyers, and social workers - mediators are not licensed and the

process they conduct is informal. If the intent to mediate is

not clear, even a casual discussion over a backyard fence might

later be deemed to have been a mediation, unfairly surprising

those involved and frustrating the reasonable expectations of

the parties. The first triggering mechanism, Section 3(a)(1),

subject to exceptions provided in 3(b), covers those situations

in which mediation parties are either required to mediate or

referred to mediation by governmental institutions or by an

arbitrator. Administrative agencies include those public

agencies with the authority to prescribe rules and regulations

to administer a statute, as well as the authority to adjudicate

matters arising under such a statute. They include agricultural

departments, child protective services, civil rights commissions

and worker's compensation boards, to name only a few. Through

this triggering mechanism, the formal court-referred mediation

that many people associate with mediation is clearly covered by

the Act.

Where Section 3(a)(1) focuses on publicly referred mediations,
the second triggering mechanism, Section 3(a)(2), furthers
party autonomy by allowing mediation parties and the mediator
to trigger the Act by agreeing to mediate in a record that is
signed by the parties and by the mediator. A later note by one
party that they agreed to mediate would not constitute a
record of an agreement to mediate. In addition, the record
must demonstrate the expectation of the mediation parties and
the mediator that the mediation communications will have a
privilege against disclosure.

Yet significantly, these individuals are not required to use
any magic words to obtain the protection of the Act. See
Haghighi v. Russian-American Broadcasting Co., 577 N.W.2d 927
(Minn.1998). The lack of a requirement for magic words tracks
the intent to
be inclusive and to embrace the many different approaches to
mediation. Moreover, were magic words required, party and
mediator expectations of confidentiality under the Act might
be

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