Most mediations are covered by the UMA, which provides plenty of protection for mediation. There are three ways in which your mediation can be covered, and you only have to be included in one category. The first category of section 2710.02 of the Ohio Revised Code states that the UMA applies when the parties to the mediation are required to mediate under a law, court, or rule of an administrative agency, or a court, administrative agency or arbitrator refer them to mediation. The second category, from section 2710.02 of the Ohio Revised Code, says that the UMA applies when the mediating parties and the mediator agree to mediate in a registry.
The registry must show the parties' expectation that mediation communications are “legally protected against disclosure”. The third category of section 2710.02 of the Ohio Revised Code says that you are covered by the UMA if the person who is mediating advertises their services as a mediator or if you meditate with a volunteer at a community mediation center, since that center “presents itself as a mediation center”. UMA provides plenty of protection for mediation, but it may not be right for you. If you fit into one of the three categories above, but have decided, for whatever reason, that you prefer not to be covered by the privilege sections of the UMA, you can decide that all or part of a mediation is not privileged.
All parties must agree in advance on a signed record or on a record of a proceeding, such as the record of a court proceeding. Participants who are not parties and the mediator must receive actual notification of the agreement; otherwise, any mediation communication from those individuals will be covered by the UMA. The confidentiality aspect of UMA begins when you consider, carry out, participate, initiate, continue or reconvene mediation, or hire a mediator. This is very broad and covers everything related to mediation from the moment you contact the mediator or mediation center until you abandon the mediation experience. A mediator is someone who “carries out mediation” and can refuse to testify about a mediation communication.
The mediator can prevent anyone else from testifying about a mediation communication made by himself, but he does not have the power to prevent people from testifying about mediation communications submitted by other people. A participant who is not a party is a person who participates in a mediation other than a party or a mediator. For example, this could be an expert witness, translator, neighbor or support person, or lawyer. A participant who is not a party may refuse to testify about a mediation communication made by himself and can also prevent another person from testifying about a mediation communication made by himself, but he does not have the power to prevent people from testifying about mediation communications submitted by other people. In addition, the judge will determine if mediation is privileged when the procedure in question involves a misdemeanor or contract derived from mediation. FAQs 10 to 13 provide more details on some of these exceptions.
Section 2710.05 (A) (A) of the Ohio Revised Code protects children by allowing courts to hear communications related to child abuse and neglect only in proceedings where a child or adult protective services agency has initiated the procedure and is a party to it. Section 2710.06 (B) of the Ohio Revised Code states that the mediator may disclose child abuse and neglect to a public agency responsible for protecting the child. Finally, section 2151.421 of the Ohio Revised Code requires certain individuals to report child abuse or neglect. To summarize all of this information: A person can testify if a procedure was initiated to protect the child such as abuse, neglect or dependent child proceedings; however they cannot testify in divorce proceedings unless there was an involved social worker from child protective services present at the mediation. A mediator can disclose child abuse and neglect to a public agency responsible for protecting the child.
