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judge with responsibility for the case. This is consistent with | | the prohibition on mediator reports to courts in Section 7. The | | term "judge" in Section 3(b)(3) includes magistrates, special | | masters, referees, and any other persons responsible for making | | rulings or recommendations on the case. However, the Act does | | not apply to a court mediator, or a mediator who contracts or | | volunteers to mediate cases for a court because they may not | | make later rulings on the case. Similarly mediations conducted | | by judges specifically and exclusively are assigned to mediate | | cases, so-called "buddy judges," and retired judges who return | | to mediate cases do not fall within the Section 3(b)(3) | | exemption because such mediators do not make later rulings on | | the case. |
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| | | Local rules are usually not recognized beyond the court's | | jurisdiction, and may not provide assurance of confidentiality | | if the mediation communications are sought in another | | jurisdiction, and if the jurisdiction does not permit | | recognize privilege by local rule. |
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| | | 5. Section 3(b)(4)(A). Exclusion of peer mediation. |
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| | | The Act also exempts mediations between students conducted | | under the auspices of school programs because the supervisory | | needs of schools toward students, particularly in peer | | mediation, may not be consistent with the confidentiality | | provisions of the Act. For example, school administrators need | | to be able to respond to, and in a proceeding verify, | | legitimate threats to student safety or domestic violence that | | may surface during a mediation between students. See | | Memorandum from ABA Section of Dispute Resolution to Uniform | | Mediation Act Reporters (Nov. 15, 1999) (on file with UMA | | Drafting Committees). The law has "repeatedly emphasized the | | need for affirming the comprehensive authority of the States | | and of school officials, consistent with fundamental | | constitutional safeguards, to prescribe and control conduct in | | the schools." Tinker v. Des Moines Independent Community | | School District, 393 U.S. 503, 508 (1969), citing Epperson v. | | Arkansas, 393 U.S. 97, 104 (1968) and Meyer v. Nebraska, 262 | | U.S. 390, 402 (1923). |
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| | | This exemption does not include mediations involving a | | teacher, parent, or other non-student as such an exemption | | might preclude coverage of truancy mediation and other | | mediation sessions for which the privilege is pertinent |
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| | | 6. Section 3(b)(4)(B). Exclusion of correctional institutions | | for youth. |
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| | | The Act also exempts programs involving youths at correctional | | institutions if the mediation parties are all residents of the | | institution. This is to facilitate and encourage mediation and | | conflict prevention and resolution techniques among those | | juveniles who have well-documented and profound needs in those | | areas. Kristina H. Chung, Kids Behind Bars: The Legality of |
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