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Nonetheless, the parties' consent is required to admit the | | mediator's provision of evidence, as well as evidence provided | | by another regarding the mediator's mediation communications. |
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| | | Finally, a nonparty participant may block evidence of that | | individual's mediation communication regardless of who | | provides the evidence and whether the parties or mediator | | consent. Once again, nonetheless, the nonparty participant may | | not provide such evidence if the parties do not consent. This | | is consistent with fixing the limits of the privilege to | | protect the expectations of those persons whose candor is most | | important to the success of the mediation process. |
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| | | a. The holders of the privilege. |
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| | | A critical component of the Act's general rule is its | | designation of the holder - i.e., the person who is eligible | | to raise and waive the privilege. |
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| | | This designation brings both clarity and uniformity to the | | law. Statutory mediation privileges are somewhat unusual among | | evidentiary privileges in that they often do not specify who | | may hold and/or waive the privilege, leaving that to judicial | | interpretation. See, e.g., 710 Ill. Comp. Stat. Section 20/6 | | (1987) (community dispute resolution centers); Ind. Code | | Section 20-7.5-1-13 (1987) (university employee unions); Iowa | | Code Section 679.12 (1985) (general); Ky. Rev. Stat. Ann. | | Section 336.153 (1988) (labor disputes); 26 Me. Rev. Stat. | | Ann. Section 1026 (1999) (university employee unions); Mass. | | Gen. Laws ch. 150, Section 10A (1985) (labor disputes). |
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| | | Those statutes that designate a holder tend to be split | | between those that make the parties the only holders of the | | privilege, and those that also make the mediator a holder. | | Compare Ark. Code Ann. Section 11-2-204 (1979) (labor | | disputes); Fla. Stat. Ann. Section 61.183 (1996) (divorce); | | Kan. Stat. Ann. Section 23-605 (1999) (domestic disputes); | | N.C. Gen. Stat. Section 41A-7(d) (1998) (fair housing); Or. | | Rev. Stat. Ann. Section 107.785 (1995) (divorce) (providing | | that the parties are the sole holders) with Ohio Rev. Code | | Ann. Section 2317.023 (West 1996) (general); Wash. Rev. Code | | Ann. Section 7.75.050 (1984) (dispute resolution centers | | (making the mediator an additional holder in some respects). |
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| | | The Act adopts an approach that provides that both the parties | | and the mediators may assert the privilege regarding certain | | matters, thus giving weight to the primary concern of each | | rationale. See Ohio Rev. Code Ann. Section 2317.023 (West | | 1996) (general); Wash. Rev. Code Section 5.60.070 (1993) | | (general). In |
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