Dear Members of the UMA Working Group and the Massachusetts ADR Community:

Below please find a report, submitted by the UMA Working Group's Public Sector Committee, summarizing its analysis of the issues that the draft UMA raises in the area of public sector mediation.  The Public Sector Committee feels that it is important to foster and encourage the use of mediation by public agencies and bodies at the State, County and Municipal levels of government.  The Committee looked at three options, and in the attached report makes an interim recommendation to adopt one of the options.  The reason that this is an interim recommendation is that the Public Sector Committee wanted to get feedback from the UMA Working Group and the Massachusetts ADR Community, and wanted to involve the Governor's Legal Counsel and the Massachusetts Attorney General's Office in the process, before making a final recommendation to the Group.  The Committee looks forward to getting your feedback by email to publicsector@massuma.net and will be prepared to discuss it at the September 20, 2007 meeting.

The Public Sector Committee

Mass UMA Working Group:  Subcommittee Interim Recommendation

Date: July 17, 2007

Committee Name: Public Sector Committee

Committee Reporter including email and phone:  Kurt Dettman; kdettman@c-adr.com; 781.749.2990

1) Points of Consensus and specific recommended language, if any (please reference relevant UMA section/s):

The Public Sector Committee was charged with reviewing the implications of the UMA for mediation involving public sector entities (state, county, and municipal).  The Committee’s consensus was that public sector entities should be given the same privilege protections and confidentiality options as those of “private sector” mediation participants in order to encourage the use of mediation by public sector agencies, authorities, and other governmental bodies.

The Committee recognizes, however, the important public policy interests that the Legislature has protected through the enactment of the Public Records Law and the Open Meeting Law.  The challenge is finding an appropriate balance between the public’s right to know about the actions of public entities, but preserve the option for public entities to conduct and participate in mediation in a manner that preserves the confidentiality of the process and non-disclosure of mediation related work product.  The Committee would like to see enactment of the UMA encourage public sector entities to use mediation as a means to resolve the myriad of disputes that arise in the operations of government. 

For analytical purposes, the Committee assumed that Chapter 233, § 23C would be repealed and replaced with the UMA as introduced by Steven Chow, but that the protections of § 23C would be preserved in a revised form of the UMA.  The Committee decided to develop a continuum of options for consideration by the UMA Working Group.  In doing so, the Committee analyzed the current state of Massachusetts law (Chapter 233, Section 23C and the Public Records and Open Meeting Laws as they currently exist), the potential impact of the UMA as currently drafted on that existing law, and how other states/courts have dealt with similar issues.

The options developed are as follows:

Option One: Preserve the current state of the law.  This would be done by deleting UMA Section 6(a)(2) and deleting the reference to the Public Records and Open Meeting Laws in the preamble to UMA Section 8.  This essentially would replicate the current state of the law because Chapter 233, Section 23C and the Public Records and Open Meeting Laws currently exist without a specific cross reference to each other.

Option Two:  Adopt the UMA “as is”.  This would make explicit a cross reference between mediator privilege/confidentiality under the UMA and the Public Records and Open Meeting Laws.  As noted above, this does not exist under current law and in the view of the Committee might create ambiguity about the intent of the Legislature on the issue of public sector mediation privilege/confidentiality.  

Option Three: Explicitly preserve mediation privilege/confidentiality for public sector entities.  The Committee proposes two variations of this option.  First, there could be an explicit carve out in the UMA recognizing that the UMA Section 4 mediation privilege and confidentiality (if agreed by the parties pursuant to UMA Section 8) apply to public sector mediations notwithstanding the Public Records and Open Meeting Laws.  For example, Ohio has a specific mediation carve out from its definition of a public record and Oregon, although not adopting the UMA, has a regulatory scheme that permits state agencies to establish rules protecting the confidentiality of mediation records.

Second, there could be the exemption as stated above, but with a proviso that the ultimate outcome of the mediation process (say, a settlement agreement) would be subject to the Public Records and Open Meeting Law. For example, the Legislature in MGL Chapter 39, Section 23B(iii) already recognized this concept with respect to mediation involving a municipality [Open Meeting Law does not apply to meeting with mediator, but decision to participate in mediation and action on the issues that were the subject of the mediation are subject to open meeting requirements].

2) Interim Recommendation:

The Public Sector Committee’s feels that it is important to preserve and protect mediator confidentiality in the public sector.  Many governmental agencies at the state and local levels use mediation to resolve disputes, and that option should be encouraged.

The Committee recommends Option 1 for consideration by the Working Group.  The Committee assumes that if the UMA is enacted, it will preserve § 23C in some form.  The Committee feels that the current state of the law supports a position that the Legislature, through the enactment of § 23C, has recognized mediator communication confidentiality, notwithstanding the existence of the Public Records and Open Meeting Laws.  Enacting the UMA with specific references to those Laws, however, could create ambiguity as to the Legislature’s intent.  Further, a position that merely preserves the current state of the law should be more supportable in the legislative process.

The Committee makes this an “interim” recommendation because it is still in the process of seeking input from the Office of the Attorney General and the Governor’s Chief Legal Counsel.  After receiving feedback from the Working Group and after consultation with the AGO and the Governor’s Chief Legal Counsel, the Committee plans to report back at the October meeting with its recommendation.

Questions and comments?  Please contact Kurt Dettman at 781.749.2990 or kdettman@c-adr.com.