The Uniform Mediation Act is a model statute that creates a statutory privilege keeping what you say in mediation out of later court, arbitration, and administrative proceedings, provided the mediation meets one of the Act’s triggers and no exception applies. Roughly a dozen states have enacted it, including Ohio, Illinois, and Washington, and each adopting state has some flexibility to modify the model language.1Supreme Court of Ohio. The Uniform Mediation Act: A Quick Reference for Judges If your mediation is in a state that has not adopted the Act, a different confidentiality statute, evidence rule, or private contract will govern instead.
When the Act Applies to Your Mediation
The UMA covers two situations: a mediation that a court or government agency refers to the process, and a mediation the parties agree in a signed record will be governed by the Act.2Illinois General Assembly. Illinois Code 710 ILCS 35 – Uniform Mediation Act Nothing else triggers it. A private mediation that both sides walk into without a written agreement invoking the UMA falls into a gap where no statutory privilege attaches, leaving confidentiality to rest on whatever contract the parties signed with the mediator.
The Act defines mediation as a process where a neutral mediator facilitates communication and negotiation to help parties reach a voluntary agreement. A “mediation communication” is any statement, oral or written, made during the process or specifically for it. That definition is intentionally broad, so a party cannot later argue that a particular email or hallway remark fell outside the privilege because it wasn’t part of a formal session.
One thing the UMA does not do: require any particular credential to serve as a mediator. The Act leaves qualification standards to individual states and court programs.
What the Privilege Protects
Section 4 gives mediation parties the right to refuse to disclose their own statements and to prevent others from disclosing them in later legal proceedings.3Trans-Lex.org. Sec. 4, US Uniform Mediation Act Mediators and nonparty participants, such as experts or witnesses invited into the session, hold their own separate privilege over their own communications. A party cannot unilaterally force the mediator onto the stand to recount what happened in the room.
The privilege runs against any later proceeding, including court trials, arbitration, and administrative hearings. Mediation communications are also shielded from discovery, so opposing counsel cannot use subpoenas or document requests to pull them in through the back door. That is where the UMA goes further than a plain confidentiality contract, which a court can sometimes override when it decides the evidence is important enough.
When the Privilege Can Be Waived or Lost
Section 5 allows waiver, but only when every party to the mediation agrees, either in a signed record or orally in a proceeding. For the mediator’s own privilege, the mediator must also expressly consent. The same goes for nonparty participants regarding their own statements.4National Conference of Commissioners on Uniform State Laws. Uniform Mediation Act One party acting alone cannot waive the privilege over another party’s objection.
Parties can also agree before the mediation starts that some or all communications will not be privileged. If both sides sign a pre-mediation document stripping the privilege, the UMA honors that choice.
Preclusion is different from waiver and does not require anyone’s consent. A party who uses mediation communications to prejudice someone else in a later proceeding loses the privilege, but only to the extent necessary for the harmed person to respond. Anyone who intentionally uses the mediation to plan, attempt, or commit a crime, or to conceal ongoing criminal activity, is also barred from claiming the privilege.4National Conference of Commissioners on Uniform State Laws. Uniform Mediation Act
Exceptions That Let Communications Come In
Section 6 lists the situations where confidentiality yields to other legal interests. Some exceptions apply automatically; others require a judge to weigh the competing interests in an in-camera hearing before allowing disclosure.2Illinois General Assembly. Illinois Code 710 ILCS 35 – Uniform Mediation Act
Automatic exceptions include:
- A mediated settlement agreement signed by the parties is not privileged. The privilege protects the negotiation, not the final deal.
- Communications containing a credible threat to inflict bodily harm or commit a violent crime can be disclosed.
- Evidence of child abuse, neglect, or exploitation of a vulnerable adult can be reported to the appropriate protective agency.
- Communications revealing mediator misconduct or malpractice during the session are not protected.
Other exceptions require judicial approval. A court can order disclosure if the party seeking the evidence shows it is not available from any other source and that the need for it substantially outweighs the public interest in mediation confidentiality. Ohio limits that discretionary exception to misdemeanor proceedings and cases involving claims to rescind or reform a contract arising out of the mediation.1Supreme Court of Ohio. The Uniform Mediation Act: A Quick Reference for Judges The “substantially outweighs” standard is deliberately demanding; ordinary relevance is not enough.
What the Mediator Can Tell the Court
Section 7 is strict. A mediator cannot make any report, assessment, evaluation, recommendation, or finding to a court, agency, or arbitrator that may rule on the dispute.2Illinois General Assembly. Illinois Code 710 ILCS 35 – Uniform Mediation Act The mediator can disclose only narrow administrative facts: whether the mediation took place, whether it has ended, whether the parties reached a settlement, and who attended. Any communication beyond those basics cannot be considered by the court, even if a judge has already seen it.
Mediator Conflicts and Loss of Privilege
Before accepting an assignment, a mediator must make a reasonable inquiry into whether any facts could affect their impartiality, including financial interests in the outcome, personal relationships with any party, and past professional dealings with foreseeable participants. Those facts must be disclosed to the parties before the mediator takes the engagement, and any conflict discovered after the mediation begins must be disclosed as soon as practicable.
The enforcement mechanism is severe. A mediator who fails to make required Section 9 conflict disclosures loses the right to assert the mediation privilege, which means everything the mediator said or heard during the session could become fair game in a later proceeding. At a party’s request, the mediator must also disclose their qualifications to handle the particular type of dispute.
Your Right to Bring an Attorney
Section 10 guarantees that a party may be accompanied by an attorney or other designated individual during mediation sessions.4National Conference of Commissioners on Uniform State Laws. Uniform Mediation Act Some court-annexed programs historically discouraged attorney participation, and the UMA settles the question. A party who agreed before the session to attend without a lawyer can rescind that waiver and bring counsel after all.
Enforcing the Settlement Itself
Because a signed mediated settlement agreement is not privileged, it can be enforced in court like any other contract. The UMA drafters considered a special summary enforcement procedure and ultimately recommended against including one, leaving enforcement to existing state contract law.
A mediated settlement agreement can be set aside on the same grounds that would invalidate any contract: fraud, duress, coercion, or other dishonest conduct. Courts have also found that failing to disclose material information during the mediation, such as hidden assets in a divorce, can render the resulting agreement unenforceable. The privilege does not shield communications that prove the agreement was procured dishonestly, because the Section 6 misconduct exception and the Section 5 preclusion provisions work together to keep the privilege from being used to protect bad-faith conduct.
How the UMA Interacts with Federal Rule 408
Federal Rule of Evidence 408 provides a baseline protection for settlement negotiations in federal court by barring evidence of compromise offers, acceptance of offers, and statements made during settlement negotiations when used to prove or disprove the validity or amount of a disputed claim.5Legal Information Institute (LII). Rule 408. Compromise Offers and Negotiations It is narrower than the UMA privilege in two ways. The same evidence can still come in for other purposes, such as proving witness bias or rebutting a claim of undue delay. And Rule 408 contains a carve-out for criminal cases where the negotiations involved a claim by a government agency acting in a regulatory or enforcement capacity. The UMA’s privilege applies more broadly and does not have a similar criminal-case exception for government claims.
A mediation conducted in a UMA state can still end up in a federal proceeding where Rule 408’s more limited exclusion is the only protection available. In multi-jurisdictional disputes, analyze which protection applies before the mediation rather than after.
Which States Have Adopted the UMA
The adopting states include Ohio, Illinois, and Washington, among roughly a dozen total. The “uniform” label is partly aspirational because each adopting state can tweak the model language, as Ohio has done with the judicial-discretion exception.1Supreme Court of Ohio. The Uniform Mediation Act: A Quick Reference for Judges
Most states have not adopted the UMA and instead rely on their own mediation confidentiality statutes or evidence code provisions. California and Florida, two of the busiest litigation states, maintain independent frameworks. California’s approach is often described as near-absolute confidentiality with very few exceptions, while other states take a more permissive approach that gives judges greater discretion to order disclosure. In states without either the UMA or a dedicated mediation statute, parties fall back on contractual confidentiality agreements, which offer weaker protection because a court can override a private contract when it decides the evidence is important enough.
A statement protected in one state may be discoverable in another, and choice-of-law questions in mediation confidentiality disputes are notoriously underdeveloped. Specify in your mediation agreement which state’s confidentiality law governs, rather than leaving that question to be litigated later. By the time it becomes a problem, the damage is already done.