Ohio State Journal on Dispute Resolution
Uniform state laws, uniform mediation law, mediation, National Conference of Commissioners on Uniform State Laws
Virtually every practicing attorney and legal academic first encountered uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy of most uniform law ventures. Taking a harder look at the uniform statutory process and its products may allow participants in a new effort to set realistic goals, or at least assist them in anticipating problems they are likely to face. This Article offers an overview and some pointers regarding the distinct challenge of developing a successful uniform mediation law. It discusses problems that stem from the private nature of the uniform act drafting operation, and also from the diversity of political and legislative settings in which a uniform statutory solution is evaluated. The use of mediation now permeates multiple public and private settings, and the related body of mediation law has experienced vast growth. At the outset of a long-term project to develop a uniform mediation act, it would be premature if not foolhardy to prescribe a pathway for success. I do, however, start from a belief that the legislative process possesses a certain coherence and that aspects of the anticipated journey may be chartable at least in broad terms. In particular, the journey may be affected by understanding which rationales best support a uniform law approach for mediation, by raising questions as to how one measures the success of such an approach, and by becoming aware of major structural or procedural obstacles that may be encountered en route. The Article relates these broad considerations to the current regulatory landscape of mediation law in an effort to provide reference points for the uniform mediation project. Part I presents an overview of the uniform law enterprise, focusing on the National Conference of Commissioners on Uniform State Laws and on the Conference's distinction between uniform and model acts. Part II considers possible reasons for adopting a uniform statutory approach. It examines public-regarding purposes and also the self-interested vantage point of various participants before discussing how these perspectives might apply in the mediation context. Part II also identifies different approaches to measuring and defining the success of a uniform law project, and suggests that a broader understanding of what constitutes success may be helpful. Finally, Part III raises several problems that are likely to confront any effort to promulgate a uniform law and indicates how these problems may arise in the mediation law setting.
James J. Brudney,
Mediation and Some Lessons from the Uniform State Law Experience , 13 Ohio St. J. on Disp. Resol. 795
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/145