UM Carey Law’s Mediation Clinic has always been at the forefront of helping people resolve their own disputes. Now, with the passage of the Maryland Mediation Confidentiality Act (MMCA), the Law School’s faculty, students and alumni are helping Marylanders ensure the privacy of their mediation discussions.
Prior to the passage of this law, mediation confidentiality protections in Maryland varied a great deal and no specific law extended confidentiality to mediation outside the courts. In other words, if two neighbors disputed a property boundary and sought mediation before or instead of going to court, they had no statutory guarantee of confidentiality later. The mediator could also be called to testify by one side or the other, destroying his or her neutrality. Yet, says Toby Treem Guerin, Managing Director of the Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law (C-DRUM) and Clinical Law Instructor, “confidentiality is one of the tenets of mediation that most people tout.”
Maryland’s mediation community called for the legislation to protect both themselves and the parties they help. “The potential for lack of confidentiality to be an issue is high,” notes Guerin. “Parties need clear and consistent information regarding the consequences of statements they make in mediation.” However, any confidentiality law would affect all practicing mediators—and would need their support. “It was important for the legislation to be as broadly supported by the mediation community as possible,” Guerin says.
The process started with a meeting at C-DRUM that included mediators from various arenas of both the public and private sectors. Meanwhile, students in the Mediation Clinic performed a 50-state review of how confidentiality is treated in mediation. They found that most states guarantee it in court-sponsored mediation, and 11 have adopted the Uniform Mediation Act, which extends confidentiality to out-of-court mediations. The students’ research helped shape the legislation and also informed the lawmakers themselves, particularly in the final crunch before the bill’s passage, said Roger Wolf, Law School Professor Emeritus.
A number of major constituents testified on behalf of the MMCA, including representatives from the Maryland State Bar Association’s Alternative Dispute Resolution Section, the Maryland Chapter of the Association for Conflict Resolution, the Maryland Council for Dispute Resolution, and Community Mediation Maryland. The Clinic submitted written testimony, on which Franklin Branch 3L, Josh Feldman 3L, and Jacob Stone 3L did preparatory work and which 3L Lindsay Barnes wrote.
Sponsored in the House of Delegates by Del. Kathleen M. Dumais ’83 (D–Montgomery County) and in the Senate by Sen. Jamie Raskin (D–Montgomery County), the bill passed both houses unanimously in the late afternoon of Monday, April 9. It will take effect October 12, 2012. In the meantime, the Clinic’s work is not done: its students will keep busy by educating partner organizations on the changes, and reworking the Clinic’s forms and introductions to reflect the new law.
“I was so excited when I heard it passed,” said Wolf, who led the collaborative effort by the Maryland mediation community. “The passage of the act is a benefit to mediation consumers and a recognition of the value of the process outside the court system.”