RULES OF COURT
| IN THE MATTER OF THE ADOPTION OF NEW APR 16 (PUBLISHED FOR COMMENT AS APR 18) | ) ) ) |
Now, therefore, it is hereby
ORDERED:
(a) That the rule as attached hereto is adopted.
(b) That the new rule will be published in the Washington Reports and will become effective September 1, 1999.
DATED at Olympia, Washington this 8th day of June, 1999.
| Richard P. Guy |
|
| B. Durham |
Smith, J. |
| Johnson, J. |
Talmadge, J. |
| Madsen, J. |
Ireland, J. |
(Published for Comment as APR 18)
(b) Mediation Program. The Washington State Bar Association is authorized to maintain and administer a Mediation Program for the resolution of disputes voluntarily submitted by the parties, or referred by the Office of Disciplinary Counsel, when mediation appears appropriate, and to be governed by such guidelines as may be adopted by the Bar Association's Board of Governors and approved by the Supreme Court.
(c) Confidentiality. Mediation under this rule shall be confidential, and communications made or materials submitted in, or in connection with, the mediation proceeding will be privileged and confidential as provided by RCW 5.60.070, provided that no party to the mediation will be precluded from filing or pursuing a grievance under the Rules for Lawyer Discipline.
(d) Selection and Appointment of Mediators. Mediators may be agreed upon by the parties or shall be assigned from a list approved by the Board of Governors and maintained by the Bar Association of both lawyers and non-lawyers with the appropriate training and experience to serve effectively in a facilitative role. Lawyers assigned as mediators shall be active members of the Bar Association for at least 7 years.
(e) Exoneration From Liability.
(1) Bar Association and Its Agents. No cause of action shall accrue in favor of any person, arising from any action or proceeding pursuant to these rules, against the Bar Association, or its officers or agents (including but not limited to its staff, members of the Board of Governors, mediators, or any other individual acting under authority of these rules) provided only that the Bar Association, officer or agent shall have acted in good faith. The burden or proving bad faith in this context shall be upon the person asserting it. The Bar Association shall provide defense to any action brought against an officer or agent of the Bar Association for actions taken in good faith under these rules and shall bear the costs of that defense and shall indemnify the officer or agent against any judgment taken therein.
(2) Parties and Witnesses. Communications to the Bar Association, Board of Governors, mediator, mediation staff, or any other individual acting under authority of these rules, are absolutely privileged, and no lawsuit predicated thereon may be instituted against any party to a mediation, witness or other person providing information.
This program was developed in conjunction with the Mediation Committee of the Alternate Dispute Resolution Section of the WSBA. It is designed to resolve disputes voluntarily submitted to it, and to provide means for resolution of disciplinary disputes involving less serious misconduct when a diversion program is developed as recommended by the Joint Task Force of Lawyer Discipline.
This proposed amendment provides for limited immunity based on the provision in Rules for Lawyer Discipline 12.11 applicable to disciplinary proceedings. Like that rule, this proposed amendment only extends immunity to those actions of Bar Association officials in the good faith performance of their official duties. As with RLD 12.11, it places the burden or proving bad faith on the person asserting bad faith. The immunity provided for parties providing information follows a similar provision in RLD 12.11.