If this Section is adopted, the state should also chose the bracketed option with this Section in Section (d), so that a mediator who is not impartial is precluded from asserting the privilege. Section (e) makes this inapplicable to an individual acting as a judge, whose impartiality is governed by judicial cannons.

§10010.__Participation in mediation

An attorney or other individual designated by a party may accompany the party to and participate in a mediation.__A waiver of participation given before the mediation may be rescinded.

REPORTER'S NOTES

The fairness of mediation is premised upon the informed consent of the parties to any agreement reached. See Wright v. Brockett, 150 Misc.2d 1031 (1991) (setting aside mediation agreement where conduct of landlord/tenant mediation made informed consent unlikely); see generally, Joseph B. Stulberg, Fairness and Mediation, 13 Ohio St. J. on Disp. Resol. 909, 936-944 (1998); Craig A. McEwen, Nancy H. Rogers, Richard J. Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn. L. Rev. 1317 (1995). Some statutes permit the mediator to exclude lawyers from mediation, resting fairness guarantees on the lawyer's later review of the draft settlement agreement. See, e.g., Cal. Fam. Code Section 3182 (West 1993); McEwen, et al., 79 Minn. L. Rev., supra, at 1345-1346. At least one bar authority has expressed doubts about the ability of a lawyer to review an agreement effectively when that lawyer did not participate in the give and take of negotiation. Boston Bar Ass'n, Op. 78-1 (1979). Similarly, concern has been raised that the right to bring counsel might be a requirement of constitutional due process in mediation programs operated by courts or administrative agencies. Richard C. Reuben, Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice, 47 UCLA L. Rev. 949, 1095 (April 2000).

Some parties may prefer not to bring counsel. However, because of the capacity of attorneys to help mitigate power imbalances, and in the absence of other procedural protections for less powerful parties, the Drafting Committees elected to let the parties, not the mediator, decide. Also, their agreement to exclude counsel