REPORTER'S NOTES

1. In general.

The Act is broad in its coverage of mediation, a departure from the common state statutes that apply to mediation in particular contexts, such as court-connected mediation or community mediation, or to the mediation of particular types of disputes, such as worker's compensation or civil rights. See, e.g., Neb. Rev. Stat. Section 48-168 (1993) (worker's compensation); Iowa Code Section 216.15A (1999) (civil rights). Moreover, unlike many mediation privileges, it also applies in some contexts in which the Rules of Evidence are not consistently followed, such as administrative hearings and arbitration.

Whether the Act in fact applies is a crucial issue because it determines not only the application of the mediation privilege but also whether the mediator has the obligations regarding the disclosure of conflicts of interest and, if asked, qualifications in Section 9; is prohibited from making disclosures about the mediation to courts, agencies and investigative authorities in Section 7; and must accommodate requirements regarding accompanying individuals in Section 10.

Because of the breadth of the Act's coverage, it is important to delineate its scope with precision. Section 3(a) sets forth three different mechanisms that trigger the Act's coverage, and will likely cover most mediation situations that commonly arise. Section 3(b) on the other hand, carves out a series of narrow and specific exemptions from the Act's coverage. Finally, Section 3(c) provides a vehicle through which parties who would be mediating in a context covered by Section 3(a) may "opt out" of the Act's protections and responsibilities. The central operating principle throughout this Section is that the Act should support, and guide, the parties' reasonable expectations about whether the mediations in which they are participating are included within the scope of the Act.

2. Section 3(a). Mediations covered by Act; triggering mechanisms.

Section 3(a) sets forth three conditions, the satisfaction of any one of which will trigger the application of the Act. This triggering requirement is necessary because the many different forms, contexts, and practices of mediation and other methods of dispute resolution make it sometimes difficult to know with