Senate File 323 - Enrolled

PAG LIN

  1  1                                             SENATE FILE 323
  1  2
  1  3                             AN ACT
  1  4 ESTABLISHING A UNIFORM MEDIATION ACT.
  1  5
  1  6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  1  7
  1  8    Section 1.  Section 13.14, subsection 2, Code 2005, is
  1  9 amended to read as follows:
  1 10    2.  Confidentiality is also protected as provided in
  1 11 section 679C.2 679C.108.
  1 12    Sec. 2.  Section 22.7, subsection 37, Code 2005, is amended
  1 13 to read as follows:
  1 14    37.  Mediation documents communications as defined in
  1 15 section 679C.1 679C.102, except written mediation agreements
  1 16 that resulted from a mediation which are signed on behalf of a
  1 17 governing body.  However, confidentiality of mediation
  1 18 documents communications resulting from mediation conducted
  1 19 pursuant to chapter 216 shall be governed by chapter 216.
  1 20    Sec. 3.  Section 216.15B, subsection 2, Code 2005, is
  1 21 amended to read as follows:
  1 22    2.  If formal mediation is conducted by a mediator pursuant
  1 23 to this section, the confidentiality of all mediation
  1 24 communications and mediation documents is protected as
  1 25 provided in section 679C.2 679C.108.
  1 26    Sec. 4.  Section 654A.13, Code 2005, is amended to read as
  1 27 follows:
  1 28    654A.13  CONFIDENTIALITY.
  1 29    If mediation is conducted pursuant to this chapter, the
  1 30 confidentiality of all mediation communications and mediation
  1 31 documents is protected as provided in section 679C.2 679C.108.
  1 32    Sec. 5.  Section 679.12, Code 2005, is amended to read as
  1 33 follows:
  1 34    679.12  CONFIDENTIALITY.
  1 35    If mediation is conducted pursuant to this chapter, the
  2  1 confidentiality of all mediation communications and mediation
  2  2 documents is protected as provided in section 679C.2 679C.108.
  2  3    Sec. 6.  NEW SECTION.  679C.101  SHORT TITLE.
  2  4    This chapter shall be known as the "Uniform Mediation Act".
  2  5    Sec. 7.  NEW SECTION.  679C.102  DEFINITIONS.
  2  6    As used in this chapter, unless the context otherwise
  2  7 requires:
  2  8    1.  "Mediation" means a process in which a mediator
  2  9 facilitates communication and negotiation between parties to
  2 10 assist them in reaching a voluntary agreement regarding their
  2 11 dispute.
  2 12    2.  "Mediation communication" means a statement, whether
  2 13 oral or in a record, verbal or nonverbal, that occurs during a
  2 14 mediation or is made for purposes of considering, conducting,
  2 15 participating in, initiating, continuing, or reconvening a
  2 16 mediation or retaining a mediator.
  2 17    3.  "Mediation party" means an individual who participates
  2 18 in a mediation and whose agreement is necessary to resolve the
  2 19 dispute.
  2 20    4.  "Mediator" means an individual who conducts a
  2 21 mediation.
  2 22    5.  "Nonparty participant" means a person, other than a
  2 23 mediation party or mediator, that participates in a mediation.
  2 24    6.  "Person" means an individual; corporation; business
  2 25 trust; estate; trust; partnership; limited liability company;
  2 26 association; joint venture; government; governmental
  2 27 subdivision, agency, or instrumentality; public corporation;
  2 28 or any other legal or commercial entity.
  2 29    7.  "Proceeding" means any of the following:
  2 30    a.  A judicial, administrative, arbitral, or other
  2 31 adjudicative process, including related prehearing and
  2 32 posthearing motions, conferences, and discovery.
  2 33    b.  A legislative hearing or similar process.
  2 34    8.  "Record" means information that is inscribed on a
  2 35 tangible medium or that is stored in an electronic or other
  3  1 medium and is retrievable in perceivable form.
  3  2    9.  "Sign" means any of the following:
  3  3    a.  To execute or adopt a tangible symbol with the present
  3  4 intent to authenticate a record.
  3  5    b.  To attach or logically associate an electronic symbol,
  3  6 sound, or process to or with a record with the present intent
  3  7 to authenticate a record.
  3  8    Sec. 8.  NEW SECTION.  679C.103  SCOPE.
  3  9    1.  Except as otherwise provided for in subsections 2 and
  3 10 3, this chapter applies to a mediation that occurs under any
  3 11 of the following circumstances:
  3 12    a.  The mediation parties are required to mediate by
  3 13 statute or court or administrative agency rule or referred to
  3 14 mediation by a court, administrative agency, or arbitrator.
  3 15    b.  The mediation parties and the mediator agree to mediate
  3 16 in a record that demonstrates an expectation that mediation
  3 17 communications will be privileged against disclosure.
  3 18    c.  The mediation parties use as a mediator a person who
  3 19 holds oneself out as a mediator or the mediation is provided
  3 20 by a person who holds oneself out as providing mediation.
  3 21    2.  This chapter shall not apply to a mediation relating to
  3 22 or conducted by any of the following circumstances:
  3 23    a.  Relating to the establishment, negotiation,
  3 24 administration, or termination of a collective bargaining
  3 25 relationship.
  3 26    b.  Relating to a dispute that is pending under or is part
  3 27 of the processes established by a collective bargaining
  3 28 agreement, except that this chapter applies to a mediation
  3 29 arising out of a dispute that has been filed with an
  3 30 administrative agency or court.
  3 31    c.  Conducted by a judge who might make a ruling on the
  3 32 case.
  3 33    d.  Conducted at any of the following:
  3 34    (1)  A primary or secondary school if all the parties are
  3 35 students.
  4  1    (2)  A correctional institution for youths if all the
  4  2 parties are residents of that institution.
  4  3    3.  If the mediation parties agree in advance in a signed
  4  4 record, or a record of proceeding reflects agreement by the
  4  5 mediation parties, that all or part of a mediation is not
  4  6 privileged, the privileges under sections 679C.104 through
  4  7 679C.106 do not apply to the mediation or part agreed upon.
  4  8 However, sections 679C.104 through 679C.106 apply to a
  4  9 mediation communication made by a person that has not received
  4 10 actual notice of the agreement before the communication is
  4 11 made.
  4 12    Sec. 9.  NEW SECTION.  679C.104  PRIVILEGE AGAINST
  4 13 DISCLOSURE == ADMISSIBILITY == DISCOVERY.
  4 14    1.  Except as otherwise provided in section 679C.106, a
  4 15 mediation communication is privileged as provided in
  4 16 subsection 2 and is not subject to discovery or admissible in
  4 17 evidence in a proceeding unless waived or precluded as
  4 18 provided by section 679C.105.
  4 19    2.  In a proceeding, the following privileges shall apply:
  4 20    a.  A mediation party may refuse to disclose, and may
  4 21 prevent any other person from disclosing, a mediation
  4 22 communication.
  4 23    b.  A mediator may refuse to disclose a mediation
  4 24 communication, and may prevent any other person from
  4 25 disclosing a mediation communication of the mediator.
  4 26    c.  A nonparty participant may refuse to disclose, and may
  4 27 prevent any other person from disclosing, a mediation
  4 28 communication of the nonparty participant.
  4 29    3.  Evidence or information that is otherwise admissible or
  4 30 subject to discovery does not become inadmissible or protected
  4 31 from discovery solely by reason of its disclosure or use in a
  4 32 mediation.
  4 33    Sec. 10.  NEW SECTION.  679C.105  WAIVER AND PRECLUSION OF
  4 34 PRIVILEGE.
  4 35    1.  A privilege under section 679C.104 may be waived in a
  5  1 record or orally during a proceeding if it is expressly waived
  5  2 by all mediation parties and if all of the following apply:
  5  3    a.  In the case of the privilege of a mediator, the
  5  4 privilege is expressly waived by the mediator.
  5  5    b.  In the case of the privilege of a nonparty participant,
  5  6 the privilege is expressly waived by the nonparty participant.
  5  7    2.  A person that discloses or makes a representation about
  5  8 a mediation communication which prejudices another person in a
  5  9 proceeding is precluded from asserting a privilege under
  5 10 section 679C.104, but only to the extent necessary for the
  5 11 person prejudiced to respond to the disclosure or
  5 12 representation.
  5 13    3.  A person that intentionally uses a mediation to plan,
  5 14 to attempt to commit, or to commit a crime, or to conceal an
  5 15 ongoing crime or ongoing criminal activity is precluded from
  5 16 asserting a privilege pursuant to section 679C.104.
  5 17    Sec. 11.  NEW SECTION.  679C.106  EXCEPTIONS TO PRIVILEGE.
  5 18    1.  No privilege exists under section 679C.104 for a
  5 19 mediation communication that involves any of the following:
  5 20    a.  An agreement evidenced by a record signed by all
  5 21 mediation parties to the agreement.
  5 22    b.  A communication that is available to the public under
  5 23 chapter 22 or made during a session of a mediation which is
  5 24 open, or is required by law to be open, to the public.
  5 25    c.  A threat or statement of a plan to inflict bodily
  5 26 injury or commit a crime of violence.
  5 27    d.  A plan to commit or attempt to commit a crime, the
  5 28 commission of a crime, or activity to conceal an ongoing crime
  5 29 or ongoing criminal activity.
  5 30    e.  A communication that is sought or offered to prove or
  5 31 disprove a claim or complaint of professional misconduct or
  5 32 malpractice filed against a mediator.
  5 33    f.  Except as otherwise provided in subsection 3, a
  5 34 communication that is sought or offered to prove or disprove a
  5 35 claim or complaint of professional misconduct or malpractice
  6  1 filed against a mediation party, nonparty participant, or
  6  2 representative of a mediation party based on conduct occurring
  6  3 during a mediation.
  6  4    g.  A communication that is sought or offered to prove or
  6  5 disprove abuse, neglect, abandonment, or exploitation in a
  6  6 proceeding in which a child or adult protective services
  6  7 agency is a party, unless the child or adult protection case
  6  8 is referred by a court to mediation and a public agency
  6  9 participates.
  6 10    2.  There is no privilege under section 679C.104 if a
  6 11 court, administrative agency, or arbitrator finds, after a
  6 12 hearing in camera, that the party seeking discovery or the
  6 13 proponent of the evidence has shown that the evidence is not
  6 14 otherwise available, that there is a need for the evidence
  6 15 that substantially outweighs the interest in protecting
  6 16 confidentiality, and that the mediation communication is
  6 17 sought or offered in any of the following situations:
  6 18    a.  A court proceeding involving a felony or misdemeanor.
  6 19    b.  Except as otherwise provided in subsection 3, a
  6 20 proceeding to prove a claim to rescind or reform a contract or
  6 21 a defense to avoid liability on a contract arising out of the
  6 22 mediation.
  6 23    3.  A mediator shall not be compelled to provide evidence
  6 24 of a mediation communication referred to in subsection 1,
  6 25 paragraph "f", or subsection 2, paragraph "b".
  6 26    4.  If a mediation communication is not privileged under
  6 27 subsection 1 or 2, only the portion of the communication
  6 28 necessary for the application of the exception from
  6 29 nondisclosure may be admitted.  Admission of evidence under
  6 30 subsection 1 or 2 does not render the evidence, or any other
  6 31 mediation communication, discoverable or admissible for any
  6 32 other purpose.
  6 33    Sec. 12.  NEW SECTION.  679C.107  PROHIBITED MEDIATOR
  6 34 REPORTS.
  6 35    1.  Except as required in subsection 2, a mediator shall
  7  1 not make a report, assessment, evaluation, recommendation,
  7  2 finding, or other communication regarding a mediation to a
  7  3 court, administrative agency, or other authority that may make
  7  4 a ruling on the dispute that is the subject of the mediation.
  7  5    2.  A mediator may disclose any of the following:
  7  6    a.  Whether the mediation occurred or has terminated,
  7  7 whether a settlement was reached, and attendance.
  7  8    b.  A mediation communication as permitted under section
  7  9 679C.106.
  7 10    c.  A mediation communication evidencing abuse, neglect,
  7 11 abandonment, or exploitation of an individual to a public
  7 12 agency responsible for protecting individuals against such
  7 13 mistreatment.
  7 14    3.  A communication made in violation of subsection 1 shall
  7 15 not be considered by a court, administrative agency, or
  7 16 arbitrator.
  7 17    Sec. 13.  NEW SECTION.  679C.108  CONFIDENTIALITY.
  7 18    Unless subject to chapter 21 or 22, mediation
  7 19 communications are confidential to the extent agreed to by the
  7 20 parties or provided by other law or rule of this state.
  7 21    Sec. 14.  NEW SECTION.  679C.109  MEDIATOR'S DISCLOSURE OF
  7 22 CONFLICTS OF INTEREST == BACKGROUND.
  7 23    1.  Before accepting a mediation, an individual who is
  7 24 requested to serve as a mediator shall do all of the
  7 25 following:
  7 26    a.  Make an inquiry that is reasonable under the
  7 27 circumstances to determine whether there are any known facts
  7 28 that a reasonable individual would consider likely to affect
  7 29 the impartiality of the mediator, including a financial or
  7 30 personal interest in the outcome of the mediation and an
  7 31 existing or past relationship with a mediation party or
  7 32 foreseeable participant in the mediation.
  7 33    b.  Disclose any such known fact to the mediation parties
  7 34 as soon as is practical before accepting a mediation.
  7 35    2.  If a mediator learns any fact described in subsection 1
  8  1 after accepting a mediation, the mediator shall disclose it as
  8  2 soon as is practicable.
  8  3    3.  At the request of a mediation party, an individual who
  8  4 is requested to serve as a mediator shall disclose the
  8  5 mediator's qualifications to mediate a dispute.
  8  6    4.  A person that violates subsection 1, 2, or 7 is
  8  7 precluded by the violation from asserting a privilege under
  8  8 section 679C.104.
  8  9    5.  Subsections 1, 2, 3, and 7 do not apply to an
  8 10 individual acting as a judge.
  8 11    6.  This chapter does not require that a mediator have a
  8 12 special qualification by background or profession.
  8 13    7.  A mediator must be impartial, unless after disclosure
  8 14 of the facts required in subsections 1, 2, and 3 to be
  8 15 disclosed, the parties agree otherwise.
  8 16    Sec. 15.  NEW SECTION.  679C.110  PARTICIPATION IN
  8 17 MEDIATION.
  8 18    An attorney or other individual designated by a mediation
  8 19 party may accompany the mediation party to and participate in
  8 20 a mediation.  A waiver of participation given before the
  8 21 mediation may be rescinded.
  8 22    Sec. 16.  NEW SECTION.  679C.111  RELATION TO ELECTRONIC
  8 23 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
  8 24    The provisions of this chapter modify or supersede the
  8 25 federal Electronic Signatures in Global and National Commerce
  8 26 Act, 15 U.S.C. } 7001 et seq., but this chapter does not
  8 27 modify, limit, or supersede section 101c of that Act or
  8 28 authorize electronic delivery of any of the notices described
  8 29 in section 103b of that Act.
  8 30    Sec. 17.  NEW SECTION.  679C.112  UNIFORMITY OF APPLICATION
  8 31 AND CONSTRUCTION.
  8 32    In applying and construing this chapter, consideration
  8 33 should be given to the need to promote uniformity of the law
  8 34 among states that enact the uniform mediation Act.
  8 35    Sec. 18.  NEW SECTION.  679C.113  SEVERABILITY CLAUSE.
  9  1    If any provision of this chapter or the application thereof
  9  2 to any person or circumstance is held invalid, the invalidity
  9  3 shall not affect other provisions or applications of this
  9  4 chapter which can be given effect without the invalid
  9  5 provision or application, and to this end, the provisions of
  9  6 this chapter are severable.
  9  7    Sec. 19.  NEW SECTION.  679C.114  APPLICATION TO EXISTING
  9  8 AGREEMENTS OR REFERRALS.
  9  9    1.  This chapter governs a mediation pursuant to a referral
  9 10 or an agreement to mediate made on or after July 1, 2005.
  9 11    2.  On or after July 1, 2005, this chapter governs an
  9 12 agreement to mediate whenever made.
  9 13    Sec. 20.  NEW SECTION.  679C.115  MEDIATOR IMMUNITY.
  9 14    A mediator or a mediation program shall not be liable for
  9 15 civil damages for a statement, decision, or omission made in
  9 16 the process of mediation unless the act or omission by the
  9 17 mediator or mediation program is made in bad faith, with
  9 18 malicious purpose, or in a manner exhibiting willful or wanton
  9 19 disregard of human rights, safety, or property.  This section
  9 20 shall apply to mediation conducted before the workers'
  9 21 compensation commissioner and mediation conducted pursuant to
  9 22 chapter 216.
  9 23    Sec. 21.  Chapter 679C, Code 2005, is repealed.
  9 24
  9 25                                                             
  9 26                               JOHN P. KIBBIE
  9 27                               President of the Senate
  9 28
  9 29
  9 30                                                             
  9 31                               CHRISTOPHER C. RANTS
  9 32                               Speaker of the House
  9 33
  9 34    I hereby certify that this bill originated in the Senate and
  9 35 is known as Senate File 323, Eighty=first General Assembly.
 10  1
 10  2
 10  3                                                             
 10  4                               MICHAEL E. MARSHALL
 10  5                               Secretary of the Senate
 10  6 Approved                , 2005
 10  7
 10  8
 10  9                                
 10 10 THOMAS J. VILSACK
 10 11 Governor