S-1603               _______________________________________________

                                         SUBSTITUTE SENATE BILL NO. 5079

                        _______________________________________________

State of Washington                              50th Legislature                              1987 Regular Session

By Senate Committee on Judiciary (originally sponsored by Senators Talmadge, Nelson and Moore)

Read first time 2/06/87.

AN ACT Relating to the admissibility of evidence arising from mediation; and adding a new section to chapter 5.64 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1.  A new section is added to chapter 5.64 RCW to read as follows:

          (1) Subject to the conditions and exceptions provided in this section, when persons agree to conduct and participate in a mediation for the purpose of compromising, settling, or resolving a dispute:

          (a) Evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence, and disclosure of any such evidence shall not be compelled, in any civil action in which, pursuant to law, testimony can be compelled to be given.  However, this limitation on evidentiary use does not apply to any communication of a threat that injury or damage may be inflicted on any person or on the property of a party to the mediation, to the extent the communication may be relevant evidence in a criminal matter; and

          (b) Unless the document otherwise provides, no document prepared for the purpose of, in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence, and disclosure of any such document shall not be compelled, in any civil action in which, pursuant to law, testimony can be compelled to be given unless the court determines that materials were submitted by a participant for the purpose of avoiding discovery of the material at a subsequent proceeding.

          (2) Subsection (1) of this section does not limit the admissibility of evidence if all persons who conducted or otherwise participated in the mediation consent to its disclosure.

          (3) This section does not apply unless, before the mediation begins, the persons who agree to conduct and participate in the mediation execute an agreement in writing that sets out the text of subsections (1) and (2) of this section and states that the persons agree that this section applies to the mediation.

          (4) This section does not apply where the admissibility of evidence is governed by RCW 26.09.015, 26.12.080, 5.60.060, or 7.75.050.

          (5) Nothing in this section makes admissible evidence that is inadmissible under court rules of evidence or any statutory provision, including, but not limited to, the sections listed in subsection (4) of this section.  Nothing in this section limits the confidentiality provided pursuant to Title 49 RCW.

          (6) Subsection (1)(b) of this section does not limit either of the following:

          (a) The admissibility of the agreement referred to in subsection (3) of this section; or

          (b) The effect of an agreement not to take a default in a pending civil action.