Senate Study Bill 1170
SENATE FILE
BY (PROPOSED COMMITTEE ON
JUDICIARY BILL BY
CO=CHAIRPERSON MILLER)
Passed Senate, Date Passed House, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act establishing a uniform mediation Act.
2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
3 TLSB 2478SC 81
4 rh/pj/5
PAG LIN
1 1 Section 1. Section 13.14, subsection 2, Code 2005, is
1 2 amended to read as follows:
1 3 2. Confidentiality is also protected as provided in
1 4 section 679C.2 679C.108.
1 5 Sec. 2. Section 22.7, subsection 37, Code 2005, is amended
1 6 to read as follows:
1 7 37. Mediation documents communications as defined in
1 8 section 679C.1 679C.102, except written mediation agreements
1 9 that resulted from a mediation which are signed on behalf of a
1 10 governing body. However, confidentiality of mediation
1 11 documents communications resulting from mediation conducted
1 12 pursuant to chapter 216 shall be governed by chapter 216.
1 13 Sec. 3. Section 216.15B, subsection 2, Code 2005, 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 section 679C.2 679C.108.
1 19 Sec. 4. Section 654A.13, Code 2005, 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 section 679C.2 679C.108.
1 25 Sec. 5. Section 679.12, Code 2005, 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 section 679C.2 679C.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 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 a person who
3 12 holds oneself out as a mediator or the mediation is provided
3 13 by a person who holds oneself out as providing mediation.
3 14 2. This chapter shall not apply to a mediation relating to
3 15 or conducted by any of the following circumstances:
3 16 a. Relating to the establishment, negotiation,
3 17 administration, or termination of a collective bargaining
3 18 relationship.
3 19 b. Relating to a dispute that is pending under or is part
3 20 of the processes established by a collective bargaining
3 21 agreement, except that this chapter applies to a mediation
3 22 arising out of a dispute that has been filed with an
3 23 administrative agency or court.
3 24 c. Conducted by a judge who might make a ruling on the
3 25 case.
3 26 d. Conducted at any of the following:
3 27 (1) A primary or secondary school if all the parties are
3 28 students.
3 29 (2) A correctional institution for youths if all the
3 30 parties are residents of that institution.
3 31 3. If the mediation parties agree in advance in a signed
3 32 record, or a record of proceeding reflects agreement by the
3 33 mediation parties, that all or part of a mediation is not
3 34 privileged, the privileges under sections 679C.104 through
3 35 679C.106 do not apply to the mediation or part agreed upon.
4 1 However, sections 679C.104 through 679C.106 apply to a
4 2 mediation communication made by a person that has not received
4 3 actual notice of the agreement before the communication is
4 4 made.
4 5 Sec. 9. NEW SECTION. 679C.104 PRIVILEGE AGAINST
4 6 DISCLOSURE == ADMISSIBILITY == DISCOVERY.
4 7 1. Except as otherwise provided in section 679C.106, a
4 8 mediation communication is privileged as provided in
4 9 subsection 2 and is not subject to discovery or admissible in
4 10 evidence in a proceeding unless waived or precluded as
4 11 provided by section 679C.105.
4 12 2. In a proceeding, the following privileges shall apply:
4 13 a. A mediation party may refuse to disclose, and may
4 14 prevent any other person from disclosing, a mediation
4 15 communication.
4 16 b. A mediator may refuse to disclose a mediation
4 17 communication, and may prevent any other person from
4 18 disclosing a mediation communication of the mediator.
4 19 c. A nonparty participant may refuse to disclose, and may
4 20 prevent any other person from disclosing, a mediation
4 21 communication of the nonparty participant.
4 22 3. Evidence or information that is otherwise admissible or
4 23 subject to discovery does not become inadmissible or protected
4 24 from discovery solely by reason of its disclosure or use in a
4 25 mediation.
4 26 Sec. 10. NEW SECTION. 679C.105 WAIVER AND PRECLUSION OF
4 27 PRIVILEGE.
4 28 1. A privilege under section 679C.104 may be waived in a
4 29 record or orally during a proceeding if it is expressly waived
4 30 by all mediation parties and if all of the following apply:
4 31 a. In the case of the privilege of a mediator, the
4 32 privilege is expressly waived by the mediator.
4 33 b. In the case of the privilege of a nonparty participant,
4 34 the privilege is expressly waived by the nonparty participant.
4 35 2. A person that discloses or makes a representation about
5 1 a mediation communication which prejudices another person in a
5 2 proceeding is precluded from asserting a privilege under
5 3 section 679C.104, but only to the extent necessary for the
5 4 person prejudiced to respond to the disclosure or
5 5 representation.
5 6 3. A person that intentionally uses a mediation to plan,
5 7 to attempt to commit, or to commit a crime, or to conceal an
5 8 ongoing crime or ongoing criminal activity is precluded from
5 9 asserting a privilege pursuant to section 679C.104.
5 10 Sec. 11. NEW SECTION. 679C.106 EXCEPTIONS TO PRIVILEGE.
5 11 1. No privilege exists under section 679C.104 for a
5 12 mediation communication that involves any of the following:
5 13 a. An agreement evidenced by a record signed by all
5 14 mediation parties to the agreement.
5 15 b. A communication that is available to the public under
5 16 chapter 22 or made during a session of a mediation which is
5 17 open, or is required by law to be open, to the public.
5 18 c. A threat or statement of a plan to inflict bodily
5 19 injury or commit a crime of violence.
5 20 d. A plan to commit or attempt to commit a crime, the
5 21 commission of a crime, or activity to conceal an ongoing crime
5 22 or ongoing criminal activity.
5 23 e. A communication that is sought or offered to prove or
5 24 disprove a claim or complaint of professional misconduct or
5 25 malpractice filed against a mediator.
5 26 f. Except as otherwise provided in subsection 3, a
5 27 communication that is sought or offered to prove or disprove a
5 28 claim or complaint of professional misconduct or malpractice
5 29 filed against a mediation party, nonparty participant, or
5 30 representative of a mediation party based on conduct occurring
5 31 during a mediation.
5 32 g. A communication that is sought or offered to prove or
5 33 disprove abuse, neglect, abandonment, or exploitation in a
5 34 proceeding in which a child or adult protective services
5 35 agency is a party, unless the child or adult protection case
6 1 is referred by a court to mediation and a public agency
6 2 participates.
6 3 2. There is no privilege under section 679C.104 if a
6 4 court, administrative agency, or arbitrator finds, after a
6 5 hearing in camera, that the party seeking discovery or the
6 6 proponent of the evidence has shown that the evidence is not
6 7 otherwise available, that there is a need for the evidence
6 8 that substantially outweighs the interest in protecting
6 9 confidentiality, and that the mediation communication is
6 10 sought or offered in any of the following situations:
6 11 a. A court proceeding involving a felony or misdemeanor.
6 12 b. Except as otherwise provided in subsection 3, a
6 13 proceeding to prove a claim to rescind or reform a contract or
6 14 a defense to avoid liability on a contract arising out of the
6 15 mediation.
6 16 3. A mediator shall not be compelled to provide evidence
6 17 of a mediation communication referred to in subsection 1,
6 18 paragraph "f", or subsection 2, paragraph "b".
6 19 4. If a mediation communication is not privileged under
6 20 subsection 1 or 2, only the portion of the communication
6 21 necessary for the application of the exception from
6 22 nondisclosure may be admitted. Admission of evidence under
6 23 subsection 1 or 2 does not render the evidence, or any other
6 24 mediation communication, discoverable or admissible for any
6 25 other purpose.
6 26 Sec. 12. NEW SECTION. 679C.107 PROHIBITED MEDIATOR
6 27 REPORTS.
6 28 1. Except as required in subsection 2, a mediator shall
6 29 not make a report, assessment, evaluation, recommendation,
6 30 finding, or other communication regarding a mediation to a
6 31 court, administrative agency, or other authority that may make
6 32 a ruling on the dispute that is the subject of the mediation.
6 33 2. A mediator may disclose any of the following:
6 34 a. Whether the mediation occurred or has terminated,
6 35 whether a settlement was reached, and attendance.
7 1 b. A mediation communication as permitted under section
7 2 679C.106.
7 3 c. A mediation communication evidencing abuse, neglect,
7 4 abandonment, or exploitation of an individual to a public
7 5 agency responsible for protecting individuals against such
7 6 mistreatment.
7 7 3. A communication made in violation of subsection 1 shall
7 8 not be considered by a court, administrative agency, or
7 9 arbitrator.
7 10 Sec. 13. NEW SECTION. 679C.108 CONFIDENTIALITY.
7 11 Unless subject to chapter 21 or 22, mediation
7 12 communications are confidential to the extent agreed to by the
7 13 parties or provided by other law or rule of this state.
7 14 Sec. 14. NEW SECTION. 679C.109 MEDIATOR'S DISCLOSURE OF
7 15 CONFLICTS OF INTEREST == BACKGROUND.
7 16 1. Before accepting a mediation, an individual who is
7 17 requested to serve as a mediator shall do all of the
7 18 following:
7 19 a. Make an inquiry that is reasonable under the
7 20 circumstances to determine whether there are any known facts
7 21 that a reasonable individual would consider likely to affect
7 22 the impartiality of the mediator, including a financial or
7 23 personal interest in the outcome of the mediation and an
7 24 existing or past relationship with a mediation party or
7 25 foreseeable participant in the mediation.
7 26 b. Disclose any such known fact to the mediation parties
7 27 as soon as is practical before accepting a mediation.
7 28 2. If a mediator learns any fact described in subsection 1
7 29 after accepting a mediation, the mediator shall disclose it as
7 30 soon as is practicable.
7 31 3. At the request of a mediation party, an individual who
7 32 is requested to serve as a mediator shall disclose the
7 33 mediator's qualifications to mediate a dispute.
7 34 4. A person that violates subsection 1, 2, or 7 is
7 35 precluded by the violation from asserting a privilege under
8 1 section 679C.104.
8 2 5. Subsections 1, 2, 3, and 7 do not apply to an
8 3 individual acting as a judge.
8 4 6. This chapter does not require that a mediator have a
8 5 special qualification by background or profession.
8 6 7. A mediator must be impartial, unless after disclosure
8 7 of the facts required in subsections 1, 2, and 3 to be
8 8 disclosed, the parties agree otherwise.
8 9 Sec. 15. NEW SECTION. 679C.110 PARTICIPATION IN
8 10 MEDIATION.
8 11 An attorney or other individual designated by a mediation
8 12 party may accompany the mediation party to and participate in
8 13 a mediation. A waiver of participation given before the
8 14 mediation may be rescinded.
8 15 Sec. 16. NEW SECTION. 679C.111 RELATION TO ELECTRONIC
8 16 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
8 17 The provisions of this chapter modify or supersede the
8 18 federal Electronic Signatures in Global and National Commerce
8 19 Act, 15 U.S.C. } 7001 et seq., but this chapter does not
8 20 modify, limit, or supersede section 101c of that Act or
8 21 authorize electronic delivery of any of the notices described
8 22 in section 103b of that Act.
8 23 Sec. 17. NEW SECTION. 679C.112 UNIFORMITY OF APPLICATION
8 24 AND CONSTRUCTION.
8 25 In applying and construing this chapter, consideration
8 26 should be given to the need to promote uniformity of the law
8 27 among states that enact the uniform mediation Act.
8 28 Sec. 18. NEW SECTION. 679C.113 SEVERABILITY CLAUSE.
8 29 If any provision of this chapter or the application thereof
8 30 to any person or circumstance is held invalid, the invalidity
8 31 shall not affect other provisions or applications of this
8 32 chapter which can be given effect without the invalid
8 33 provision or application, and to this end, the provisions of
8 34 this chapter are severable.
8 35 Sec. 19. NEW SECTION. 679C.114 APPLICATION TO EXISTING
9 1 AGREEMENTS OR REFERRALS.
9 2 1. This chapter governs a mediation pursuant to a referral
9 3 or an agreement to mediate made on or after July 1, 2005.
9 4 2. On or after July 1, 2005, this chapter governs an
9 5 agreement to mediate whenever made.
9 6 Sec. 20. NEW SECTION. 679C.115 MEDIATOR IMMUNITY.
9 7 A mediator or a mediation program shall not be liable for
9 8 civil damages for a statement, decision, or omission made in
9 9 the process of mediation unless the act or omission by the
9 10 mediator or mediation program is made in bad faith, with
9 11 malicious purpose, or in a manner exhibiting willful or wanton
9 12 disregard of human rights, safety, or property. This section
9 13 shall apply to mediation conducted before the workers'
9 14 compensation commissioner and mediation conducted pursuant to
9 15 chapter 216.
9 16 Sec. 21. Chapter 679C, Code 2005, is repealed.
9 17 EXPLANATION
9 18 This bill establishes the "Uniform Mediation Act" in Iowa
9 19 relating to a mediation process in which a mediator
9 20 facilitates communication and negotiation between parties to
9 21 assist them in reaching a voluntary agreement regarding their
9 22 dispute.
9 23 The bill applies to a mediation that occurs by statute,
9 24 court, administrative, or agency rule, or referred to
9 25 mediation by a court, an administrative agency, or an
9 26 arbitrator. The bill specifically excludes a mediation
9 27 conducted by a judge who might make a ruling on the case, a
9 28 mediation conducted at a primary or secondary school if the
9 29 parties are students, or at a correctional institution for
9 30 youths if all of the parties are residents of the institution,
9 31 and a mediation that involves a collective bargaining
9 32 agreement, except that the bill applies to a collective
9 33 bargaining agreement mediation arising out of a dispute that
9 34 has been filed with an administrative agency or court.
9 35 The bill provides for privileges against disclosure related
10 1 to a mediation communication for a mediator, a party involved
10 2 in a mediation, and a nonparty participant, and includes a
10 3 provision that the parties in a mediation may agree that all
10 4 or part of a mediation may not be privileged. The bill
10 5 further provides that a privilege against disclosure may be
10 6 waived if expressly waived by all parties to the mediation
10 7 under certain circumstances, and also provides exceptions to
10 8 the privileges against disclosure related to a mediation
10 9 communication that involves a written agreement signed by all
10 10 parties to the agreement, a communication that is available to
10 11 the public under the open records law or made during a session
10 12 of a mediation which is open, or is required by law to be
10 13 open, to the public, a threat or statement of a plan to
10 14 inflict bodily injury or to commit a crime of violence, a plan
10 15 to commit or attempt to commit a crime, or to conceal an
10 16 ongoing crime or criminal activity, and a communication that
10 17 is sought or offered to prove or disprove a claim of
10 18 professional misconduct filed against a mediator. The bill
10 19 defines a "mediation communication" to mean a statement, oral
10 20 or written, verbal or nonverbal, that occurs during a
10 21 mediation or is made for purposes of considering, conducting,
10 22 participating in, initiating, continuing, or reconvening a
10 23 mediation or retaining a mediator.
10 24 The bill provides that a mediator shall not make a report
10 25 regarding a mediation to a court, administrative agency, or
10 26 other authority that may make a ruling on the dispute that is
10 27 the subject of the mediation, except that a mediator may
10 28 disclose whether the mediation occurred or has terminated,
10 29 whether a settlement was reached, and attendance, a mediation
10 30 communication that falls under one of the exceptions to the
10 31 privilege against disclosure, and a mediation communication
10 32 evidencing abuse, neglect, abandonment, or exploitation of an
10 33 individual to the appropriate public agency.
10 34 The bill also specifies that at any time prior to or during
10 35 the mediation proceeding, a mediator shall determine whether
11 1 any facts exist that would prevent the mediator from serving
11 2 in an impartial manner, and if so, the mediator shall disclose
11 3 those facts as soon as possible. The bill does not require
11 4 that a mediator have special background or professional
11 5 qualifications.
11 6 The bill provides that a mediator or mediation program
11 7 shall not be liable for civil damages for a statement,
11 8 decision, or omission made during mediation unless the act or
11 9 omission is made in bad faith, with malicious purpose, or with
11 10 willful or wanton disregard, and that this provision of the
11 11 bill shall apply to mediation conducted before the workers'
11 12 compensation commissioner and mediation conducted before the
11 13 civil rights commission.
11 14 The bill specifies that an attorney or other individual
11 15 designated by a party may accompany the party to and
11 16 participate in the mediation.
11 17 The bill specifies that the provisions of this chapter
11 18 modify or supersede certain provisions of the federal law
11 19 relating to the use of electronic signatures and records in
11 20 commercial transactions, but the bill does not modify, limit,
11 21 or supersede such provisions of the same federal law related
11 22 to consumer consent provisions and the electronic delivery of
11 23 certain notices. The bill repeals current Code chapter 679C
11 24 and also makes conforming changes to Code sections 13.14,
11 25 22.7, 216.15B, 654A.13, and 679.12.
11 26 LSB 2478SC 81
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