Text: SF02234 Text: SF02236 Text: SF02200 - SF02299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 13.14, subsection 2, Code 2003, is 1 2 amended to read as follows: 1 3 2. Confidentiality is also protected as provided in 1 4 section679C.2679C.108. 1 5 Sec. 2. Section 22.7, subsection 37, Code Supplement 2003, 1 6 is amended to read as follows: 1 7 37. Mediationdocumentsrecords as defined in section 1 8679C.1679C.102, except written mediation agreements that 1 9 resulted from a mediation which are signed on behalf of a 1 10 governing body. However, confidentiality of mediation 1 11 documents resulting from mediation conducted pursuant to 1 12 chapter 216 shall be governed by chapter 216. 1 13 Sec. 3. Section 216.15B, subsection 2, Code 2003, is 1 14 amended to read as follows: 1 15 2. If formal mediation is conducted by a mediator pursuant 1 16 to this section, the confidentiality of all mediation 1 17 communications and mediation documents is protected as 1 18 provided in section679C.2679C.108. 1 19 Sec. 4. Section 654A.13, Code 2003, is amended to read as 1 20 follows: 1 21 654A.13 CONFIDENTIALITY. 1 22 If mediation is conducted pursuant to this chapter, the 1 23 confidentiality of all mediation communications and mediation 1 24 documents is protected as provided in section679C.2679C.108. 1 25 Sec. 5. Section 679.12, Code 2003, is amended to read as 1 26 follows: 1 27 679.12 CONFIDENTIALITY. 1 28 If mediation is conducted pursuant to this chapter, the 1 29 confidentiality of all mediation communications and mediation 1 30 documents is protected as provided in section679C.2679C.108. 1 31 Sec. 6. NEW SECTION. 679C.101 SHORT TITLE. 1 32 This chapter shall be known as the "Uniform Mediation Act". 1 33 Sec. 7. NEW SECTION. 679C.102 DEFINITIONS. 1 34 As used in this chapter, unless the context otherwise 1 35 requires: 2 1 1. "Mediation" means a process in which a mediator 2 2 facilitates communication and negotiation between parties to 2 3 assist them in reaching a voluntary agreement regarding their 2 4 dispute. 2 5 2. "Mediation communication" means a statement, whether 2 6 oral or in a record, verbal or nonverbal, that occurs during a 2 7 mediation or is made for purposes of considering, conducting, 2 8 participating in, initiating, continuing, or reconvening a 2 9 mediation or retaining a mediator. 2 10 3. "Mediation party" means an individual who participates 2 11 in a mediation and whose agreement is necessary to resolve the 2 12 dispute. 2 13 4. "Mediator" means an impartial individual who conducts a 2 14 mediation. 2 15 5. "Nonparty participant" means a person, other than a 2 16 mediation party or mediator, that participates in a mediation. 2 17 6. "Person" means an individual; corporation; business 2 18 trust; estate; trust; partnership; limited liability company; 2 19 association; joint venture; government; governmental 2 20 subdivision, agency, or instrumentality; public corporation; 2 21 or any other legal or commercial entity. 2 22 7. "Proceeding" means any of the following: 2 23 a. A judicial, administrative, arbitral, or other 2 24 adjudicative process, including related prehearing and 2 25 posthearing motions, conferences, and discovery. 2 26 b. A legislative hearing or similar process. 2 27 8. "Record" means information that is inscribed on a 2 28 tangible medium or that is stored in an electronic or other 2 29 medium and is retrievable in perceivable form. 2 30 9. "Sign" means any of the following: 2 31 a. To execute or adopt a tangible symbol with the present 2 32 intent to authenticate a record. 2 33 b. To attach or logically associate an electronic symbol, 2 34 sound, or process to or with a record with the present intent 2 35 to authenticate a record. 3 1 Sec. 8. NEW SECTION. 679C.103 SCOPE. 3 2 1. Except as otherwise provided for in subsections 2 and 3 3 3, this chapter applies to a mediation that occurs under any 3 4 of the following circumstances: 3 5 a. The mediation parties are required to mediate by 3 6 statute or court or administrative agency rule or referred to 3 7 mediation by a court, administrative agency, or arbitrator. 3 8 b. The mediation parties and the mediator agree to mediate 3 9 in a record that demonstrates an expectation that mediation 3 10 communications will be privileged against disclosure. 3 11 c. The mediation parties use as a mediator an individual 3 12 who holds oneself out as a mediator or the mediation is 3 13 provided by a person that holds itself out as providing 3 14 mediation. 3 15 2. This chapter shall not apply to a mediation relating to 3 16 or conducted by any of the following circumstances: 3 17 a. Relating to the establishment, negotiation, 3 18 administration, or termination of a collective bargaining 3 19 relationship. 3 20 b. Relating to a dispute that is pending under or is part 3 21 of the processes established by a collective bargaining 3 22 agreement, except that this chapter applies to a mediation 3 23 arising out of a dispute that has been filed with an 3 24 administrative agency or court. 3 25 c. Conducted by a judge who might make a ruling on the 3 26 case. 3 27 d. Conducted at any of the following: 3 28 (1) A primary or secondary school if all the parties are 3 29 students. 3 30 (2) A correctional institution for youths if all the 3 31 parties are residents of that institution. 3 32 3. If the mediation parties agree in advance in a signed 3 33 record, or a record of proceeding reflects agreement by the 3 34 mediation parties, that all or part of a mediation is not 3 35 privileged, the privileges under sections 679C.104 through 4 1 679C.106 do not apply to the mediation or part agreed upon. 4 2 However, sections 679C.104 through 679C.106 apply to a 4 3 mediation communication made by a person that has not received 4 4 actual notice of the agreement before the communication is 4 5 made. 4 6 Sec. 9. NEW SECTION. 679C.104 PRIVILEGE AGAINST 4 7 DISCLOSURE – ADMISSIBILITY – DISCOVERY. 4 8 1. Except as otherwise provided in section 679C.106, a 4 9 mediation communication is privileged as provided in 4 10 subsection 2 and is not subject to discovery or admissible in 4 11 evidence in a proceeding unless waived or precluded as 4 12 provided by section 679C.105. 4 13 2. In a proceeding, the following privileges shall apply: 4 14 a. A mediation party may refuse to disclose, and may 4 15 prevent any other person from disclosing, a mediation 4 16 communication. 4 17 b. A mediator may refuse to disclose a mediation 4 18 communication, and may prevent any other person from 4 19 disclosing a mediation communication of the mediator. 4 20 c. A nonparty participant may refuse to disclose, and may 4 21 prevent any other person from disclosing, a mediation 4 22 communication of the nonparty participant. 4 23 3. Evidence or information that is otherwise admissible or 4 24 subject to discovery does not become inadmissible or protected 4 25 from discovery solely by reason of its disclosure or use in a 4 26 mediation. 4 27 Sec. 10. NEW SECTION. 679C.105 WAIVER AND PRECLUSION OF 4 28 PRIVILEGE. 4 29 1. A privilege under section 679C.104 may be waived in a 4 30 record or orally during a proceeding if it is expressly waived 4 31 by all mediation parties and if all of the following apply: 4 32 a. In the case of the privilege of a mediator, the 4 33 privilege is expressly waived by the mediator. 4 34 b. In the case of the privilege of a nonparty participant, 4 35 the privilege is expressly waived by the nonparty participant. 5 1 2. A person that discloses or makes a representation about 5 2 a mediation communication which prejudices another person in a 5 3 proceeding is precluded from asserting a privilege under 5 4 section 679C.104, but only to the extent necessary for the 5 5 person prejudiced to respond to the disclosure or 5 6 representation. 5 7 3. A person that intentionally uses a mediation to plan, 5 8 to attempt to commit, or to commit a crime, or to conceal an 5 9 ongoing crime or ongoing criminal activity is precluded from 5 10 asserting a privilege pursuant to section 679C.104. 5 11 Sec. 11. NEW SECTION. 679C.106 EXCEPTIONS TO PRIVILEGE. 5 12 1. No privilege exists under section 679C.104 for a 5 13 mediation communication that involves any of the following: 5 14 a. An agreement evidenced by a record signed by all 5 15 mediation parties to the agreement. 5 16 b. A communication that is available to the public under 5 17 chapter 22 or made during a session of a mediation which is 5 18 open, or is required by law to be open, to the public. 5 19 c. A threat or statement of a plan to inflict bodily 5 20 injury or commit a crime of violence. 5 21 d. A plan to commit or attempt to commit a crime, the 5 22 commission of a crime, or activity to conceal an ongoing crime 5 23 or ongoing criminal activity. 5 24 e. A communication that is sought or offered to prove or 5 25 disprove a claim or complaint of professional misconduct or 5 26 malpractice filed against a mediator. 5 27 f. Except as otherwise provided in subsection 3, a 5 28 communication that is sought or offered to prove or disprove a 5 29 claim or complaint of professional misconduct or malpractice 5 30 filed against a mediation party, nonparty participant, or 5 31 representative of a mediation party based on conduct occurring 5 32 during a mediation. 5 33 g. A communication that is sought or offered to prove or 5 34 disprove abuse, neglect, abandonment, or exploitation in a 5 35 proceeding in which a child or adult protective services 6 1 agency is a party, unless the child or adult protection case 6 2 is referred by a court to mediation and a public agency 6 3 participates. 6 4 2. There is no privilege under section 679C.104 if a 6 5 court, administrative agency, or arbitrator finds, after a 6 6 hearing in camera, that the party seeking discovery or the 6 7 proponent of the evidence has shown that the evidence is not 6 8 otherwise available, that there is a need for the evidence 6 9 that substantially outweighs the interest in protecting 6 10 confidentiality, and that the mediation communication is 6 11 sought or offered in any of the following situations: 6 12 a. A court proceeding involving a felony or misdemeanor. 6 13 b. Except as otherwise provided in subsection 3, a 6 14 proceeding to prove a claim to rescind or reform a contract or 6 15 a defense to avoid liability on a contract arising out of the 6 16 mediation. 6 17 3. A mediator shall not be compelled to provide evidence 6 18 of a mediation communication referred to in subsection 1, 6 19 paragraph "f", or subsection 2, paragraph "b". 6 20 4. If a mediation communication is not privileged under 6 21 subsection 1 or 2, only the portion of the communication 6 22 necessary for the application of the exception from 6 23 nondisclosure may be admitted. Admission of evidence under 6 24 subsection 1 or 2 does not render the evidence, or any other 6 25 mediation communication, discoverable or admissible for any 6 26 other purpose. 6 27 Sec. 12. NEW SECTION. 679C.107 PROHIBITED MEDIATOR 6 28 REPORTS. 6 29 1. Except as required in subsection 2, a mediator shall 6 30 not make a report, assessment, evaluation, recommendation, 6 31 finding, or other communication regarding a mediation to a 6 32 court, administrative agency, or other authority that may make 6 33 a ruling on the dispute that is the subject of the mediation. 6 34 2. A mediator may disclose any of the following: 6 35 a. Whether the mediation occurred or has terminated, 7 1 whether a settlement was reached, and attendance. 7 2 b. A mediation communication as permitted under section 7 3 679C.106. 7 4 c. A mediation communication evidencing abuse, neglect, 7 5 abandonment, or exploitation of an individual to a public 7 6 agency responsible for protecting individuals against such 7 7 mistreatment. 7 8 3. A communication made in violation of subsection 1 shall 7 9 not be considered by a court, administrative agency, or 7 10 arbitrator. 7 11 Sec. 13. NEW SECTION. 679C.108 CONFIDENTIALITY. 7 12 Unless subject to chapter 21 or 22, mediation 7 13 communications are confidential to the extent agreed to by the 7 14 parties or provided by other law or rule of this state. 7 15 Sec. 14. NEW SECTION. 679C.109 MEDIATOR'S DISCLOSURE OF 7 16 CONFLICTS OF INTEREST – BACKGROUND. 7 17 1. Before accepting a mediation, an individual who is 7 18 requested to serve as a mediator shall do all of the 7 19 following: 7 20 a. Make an inquiry that is reasonable under the 7 21 circumstances to determine whether there are any known facts 7 22 that a reasonable individual would consider likely to affect 7 23 the impartiality of the mediator, including a financial or 7 24 personal interest in the outcome of the mediation and an 7 25 existing or past relationship with a mediation party or 7 26 foreseeable participant in the mediation. 7 27 b. Disclose any such known fact to the mediation parties 7 28 as soon as is practical before accepting a mediation. 7 29 2. If a mediator learns any fact described in subsection 1 7 30 after accepting a mediation, the mediator shall disclose it as 7 31 soon as is practicable. 7 32 3. At the request of a mediation party, an individual who 7 33 is requested to serve as a mediator shall disclose the 7 34 mediator's qualifications to mediate a dispute. 7 35 4. A person that violates subsection 1, 2, or 7 is 8 1 precluded by the violation from asserting a privilege under 8 2 section 679C.104. 8 3 5. Subsections 1, 2, 3, and 7 do not apply to an 8 4 individual acting as a judge. 8 5 6. This chapter does not require that a mediator have a 8 6 special qualification by background or profession. 8 7 7. A mediator must be impartial, unless after disclosure 8 8 of the facts required in subsections 1, 2, and 3 to be 8 9 disclosed, the parties agree otherwise. 8 10 Sec. 15. NEW SECTION. 679C.110 PARTICIPATION IN 8 11 MEDIATION. 8 12 An attorney or other individual designated by a mediation 8 13 party may accompany the mediation party to and participate in 8 14 a mediation. A waiver of participation given before the 8 15 mediation may be rescinded. 8 16 Sec. 16. NEW SECTION. 679C.111 RELATION TO ELECTRONIC 8 17 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. 8 18 The provisions of this chapter modify or supersede the 8 19 federal Electronic Signatures in Global and National Commerce 8 20 Act, 15 U.S.C. } 7001 et seq., but this chapter does not 8 21 modify, limit, or supersede section 101c of that Act or 8 22 authorize electronic delivery of any of the notices described 8 23 in section 103b of that Act. 8 24 Sec. 17. NEW SECTION. 679C.112 UNIFORMITY OF APPLICATION 8 25 AND CONSTRUCTION. 8 26 In applying and construing this chapter, consideration 8 27 should be given to the need to promote uniformity of the law 8 28 among states that enact the uniform mediation Act. 8 29 Sec. 18. NEW SECTION. 679C.113 SEVERABILITY CLAUSE. 8 30 If any provision of this chapter or the application thereof 8 31 to any person or circumstance is held invalid, the invalidity 8 32 shall not affect other provisions or applications of this 8 33 chapter which can be given effect without the invalid 8 34 provision or application, and to this end, the provisions of 8 35 this chapter are severable. 9 1 Sec. 19. NEW SECTION. 679C.114 APPLICATION TO EXISTING 9 2 AGREEMENTS OR REFERRALS. 9 3 1. This chapter governs a mediation pursuant to a referral 9 4 or an agreement to mediate made on or after July 1, 2004. 9 5 2. On or after July 1, 2004, this chapter governs an 9 6 agreement to mediate whenever made. 9 7 Sec. 20. NEW SECTION. 679C.115 MEDIATOR IMMUNITY. 9 8 A mediator or a mediation program shall not be liable for 9 9 civil damages for a statement, decision, or omission made in 9 10 the process of mediation unless the act or omission by the 9 11 mediator or mediation program is made in bad faith, with 9 12 malicious purpose, or in a manner exhibiting willful or wanton 9 13 disregard of human rights, safety, or property. This section 9 14 shall apply to mediation conducted before the workers' 9 15 compensation commissioner and mediation conducted pursuant to 9 16 chapter 216. 9 17 Sec. 21. Chapter 679C, Code 2003, is repealed. 9 18 SF 2235 9 19 rh/cc/26
Text: SF02234 Text: SF02236 Text: SF02200 - SF02299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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