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The Uniform Mediation Act, as currently written and approved by NCCUSL, may unnecessarily cause the destruction of self-determination in many cases. The provisions demonstrate favoritism for mediators and may result in damage to the integrity of the process. Further, the nature of the provisions restricting the parties access to the exceptions to the privilege may both increase the number of lawsuits against mediators and also encourage wrongful behavior on the part of disputants. None of this will ultimately inure to the benefit of mediation as an institution. If it is necessary to have a privilege for mediation, certain elements should be adopted. First, the mediation process is not well served by a separate privilege for mediators. Second, clear exceptions should be drafted to cover contractual misconduct. Third, although a procedural step prior to accessing testimony (such as an in-camera hearing or sealed proceedings) is appropriate, no substantive hurdles should hinder access to normal common law contract remedies or impair self-determination. Finally, when challenges arise to an agreement reached in mediation, the mediator should be treated like all other mediation participants-he or she should be required to testify. The Uniform Mediation Actshould not allow the artificial distinction between the mediator malpractice and the contractual misconduct exceptions.

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Marquette Law Review



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