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agreement. Unfortunately, excluding evidence of oral settlements | | reached during a mediation session would operate to the | | disadvantage of a less legally sophisticated party who is | | accustomed to the enforcement of oral settlements reached in | | negotiations. Such a person might also mistakenly assume the | | admissibility of evidence of oral settlements reached in | | mediation as well. However, because the majority of courts and | | statutes limit the confidentiality exception to signed written | | agreements, one would expect that mediators and others will soon | | incorporate knowledge of a writing requirement into their | | practices. See Vernon v. Acton, 732 N.E.2d 805 (Ind., 2000) | | (citing draft Uniform Mediation Act); Ryan v. Garcia, 27 Cal. | | App.4th 1006, 1012 (1994) (privilege statute precluded evidence | | of oral agreement); Hudson v. Hudson, 600 So.2d 7,9 (Fla. App. | | 1992) (privilege statute precluded evidence of oral settlement); | | Ohio Rev. Code Ann. Section 2317.023 (West 1996). For an example | | of a state statute permitting the enforcement of oral agreements | | under certain narrow circumstances, see Cal. Evid. Code Section | | 1118, 1124 (West 1997) (providing that oral agreement must be | | memorialized in writing within 72 hours). |
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| | | Despite the limitation on oral agreements, the Act leaves | | parties other means to preserve the agreement quickly. For | | example, parties can agree that the mediation has ended, state | | their oral agreement into the tape recorder and record their | | assent. See Regents of the University of California v. Sumner, | | 42 Cal. App. 4th 1209, 1212 (1996). This approach was codified | | in Cal. Evid. Code Section 1118, 1124 (West 1997). |
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| | | The parties may still provide that particular settlements | | agreements are confidential with regard to disclosure to the | | general public, and provide for sanctions for the party who | | discloses voluntarily. See Stephen A. Hochman, Confidentiality | | in Mediation: A Trap for the Unwary, SB41 ALI-ABA 605 (1995). | | However, confidentiality agreements reached in mediation, like | | those in other settlement situations, are subject to the need | | for evidence and public policy considerations. See Cole et | | al., supra, Section 9.23, 9.25. |
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| | | 3. Section 6(a)(2). Mediations open to the public; meetings | | and records made open by law. |
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| | | Section 6(a)(2) makes clear that the privileges in Section 4 | | do not preempt state open meetings and open records laws, thus | | deferring to the policies of the individual States regarding | | the types of meetings that will be subject to these laws. In | | addition, it provides an exception when the mediation is | | opened to the public, such as a televised mediation. |
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| | | This exception recognizes that there should be no after-the- | | fact confidentiality for communications that were made in a | | meeting |
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