S-0042

AN ACT Relating to alternative dispute resolution; amending RCW 7.04.010, 7.06.010, 70.05.145, 7.06.040, 7.06.050, 4.48.040, 4.48.130, 4.84.250, 4.84.280, 3.66.020, 7.75.035, 26.12.010, 26.12.060, 43.08.250, 26.12.220, 13.40.150, and 13.40.190; reenacting and amending RCW 7.06.020 and 36.18.010; adding a new section to chapter 3.50 RCW; adding new sections to chapter 7.04 RCW; adding new sections to chapter 7.06 RCW; adding a new section to chapter 4.24 RCW; adding new sections to chapter 26.09 RCW; adding a new section to chapter 2.56 RCW; adding a new section to chapter 3.66 RCW; adding a new section to chapter 13.40 RCW; adding a new section to chapter 9.94A RCW; adding a new chapter to Title 7 RCW; repealing RCW 4.84.100; prescribing penalties; providing effective dates; and declaring an emergency.

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

NEW SECTION. Sec. 1. A new section is added to chapter 7.04 RCW to read as follows:

For the purposes of this chapter, the term "public agency" shall mean any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, quasi-municipal corporations, special purpose districts, and local service districts; any agency of the state government; any agency of the United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state.

Sec. 2. RCW 7.04.010 and 1947 c 209 s 1 are each amended to read as follows:

(1) Two or more parties may agree in writing to submit to arbitration, in conformity with the provisions of this chapter, any controversy which may be the subject of an action existing between them at the time of the agreement to submit, or they may include in a written agreement a provision to settle by arbitration any controversy thereafter arising between them out of or in relation to such agreement. Such agreement shall be valid, enforceable and irrevocable save upon such grounds as exist in law or equity for the revocation of any agreement.

(2) The provisions of this chapter shall apply to any written arbitration agreement between public agencies.

(3) The provisions of this chapter shall not apply to any arbitration agreement between employers and employees or between employers and associations of employees, and as to any such agreement the parties thereto may provide for any method and procedure for the settlement of existing or future disputes and controversies, and such procedure shall be valid, enforceable and irrevocable save upon such grounds as exist in law or equity for the revocation of any agreement.

Sec. 3. RCW 7.06.010 and 1984 c 258 s 511 are each amended to read as follows:

(1) In counties of the second class and larger, the superior court of the county, by majority vote of the judges thereof, or the county legislative authority may authorize mandatory arbitration of civil actions under this chapter. In all other counties, the superior court of the county, by a majority vote of the judges thereof, may authorize mandatory arbitration of civil actions under this chapter.

(2) The district courts of each county may, by a majority vote of the judges thereof, authorize mandatory arbitration of civil actions under this chapter.

NEW SECTION. Sec. 4. A new section is added to chapter 3.50 RCW to read as follows:

Any arbitration under RCW 3.50.800 or 3.50.805 shall employ the standards and procedures provided in general contractual arbitration law, which are consistent with chapter 7.04 RCW, and applicable court rules.

Sec. 5. RCW 70.05.145 and 1983 1st ex.s. c 39 s 5 are each amended to read as follows:

(1) Each city or town which is part of a county health department established under chapter 70.05 RCW or a combined city‑county health department established under chapter 70.08 RCW, or is purchasing health services from a health department under a contract authorized by RCW 70.05.150 or 70.08.090, shall pay such sums to support the operations of such department as are agreed upon by the city or town and the jurisdiction operating the department, in accordance with guidelines established by the state board of health which specify those services or types of services that cities, towns, and counties must provide, and those services which are optional.

(2) If no agreement can be reached between the jurisdiction operating the health department and such city or town following a reasonable period of good faith negotiations, including mediation where appropriate, the matter shall be resolved by a board of arbitrators which shall be convened at the request of either party.

(3) The board of arbitrators shall consist of a representative of the jurisdiction operating the health department, a representative from the city or town involved, and a third representative appointed by the other two representatives. If no agreement can be reached regarding the third representative, the third representative shall be appointed by a judge of the superior court of the county of the jurisdiction operating the department. The determination by the board of arbitrators of the amount to be paid by the city or town shall be binding on all parties. The cost, if any, of the representative appointed by each party shall be borne by that party. The cost, if any, of the third representative shall be shared equally by both parties.

(4) The arbitration shall employ the standards and procedures provided under general contractual law and applicable court rules.

Sec. 6. RCW 7.06.020 and 1987 c 212 s 101 and 1987 c 202 s 127 are each reenacted and amended to read as follows:

(1) All civil actions, except for appeals from municipal or district courts, which are at issue ((~~in the superior court~~)) in counties which have authorized arbitration, where the sole relief sought is a money judgment, and where no party asserts a claim in excess of ((~~fifteen~~)) twenty-five thousand dollars, or if approved by the superior court of a county by two-thirds or greater vote of the judges thereof, up to ((~~thirty-five~~)) thirty-eight thousand eight hundred fifty dollars, exclusive of interest and costs, are subject to mandatory arbitration.

(2) ((~~If approved by majority vote of the superior court judges of a county which has authorized arbitration,~~)) All civil actions ((~~which are~~)) at issue in the superior court in which the sole relief sought is the establishment, termination, or modification of maintenance or child support payments are subject to mandatory arbitration. The arbitrability of any ((~~such~~)) maintenance or child support action shall not be affected by the amount or number of payments involved.

Sec. 7. RCW 7.06.040 and 1987 c 212 s 102 are each amended to read as follows:

The appointment of arbitrators shall be prescribed by rules adopted by the supreme court. An arbitrator must be a member of the state bar association who has been admitted to the bar for a minimum of ((~~five~~)) seven years and who has arbitration, mediation, or litigation experience, or who is a retired judge who has a minimum of seven years of judicial experience. The parties may stipulate to a nonlawyer arbitrator. The supreme court may prescribe by rule additional qualifications of arbitrators.

Arbitrators shall be compensated in the same amount and manner as judges pro tempore of the superior court.

Sec. 8. RCW 7.06.050 and 1982 c 188 s 2 are each amended to read as follows:

Following a hearing as prescribed by court rule, the arbitrator shall file his or her decision and award with the clerk of the ((~~superior~~)) court, together with proof of service thereof on the parties. Within twenty days after such filing, any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo ((~~in the superior court~~)) on all issues of law and fact. Such trial de novo shall thereupon be held, including a right to jury, if demanded and otherwise provided by law.

If no appeal has been filed at the expiration of twenty days following filing of the arbitrator's decision and award, a judgment shall be entered and may be presented to the court by any party, on notice, which judgment when entered shall have the same force and effect as judgments in civil actions.

Sec. 9. RCW 4.48.040 and 1984 c 258 s 515 are each amended to read as follows:

A person appointed by the court as a referee or who serves as a referee with the consent of the parties shall be:

(1) Qualified as a juror as provided by statute((.));

(2) Competent as juror between the parties((.)); and

(3) A ((~~duly admitted and practicing~~)) licensed attorney, or a former district, superior, or appellate court judge.

Sec. 10. RCW 4.48.130 and 1984 c 258 s 523 are each amended to read as follows:

(1) If an action is to be tried by a referee appointed under RCW 4.48.010, at least five days before the date set for the trial the referee shall advise the clerk of the court of the time and place set for the trial. The clerk shall post in a conspicuous place in the courthouse a notice that includes the names of the parties to the action, the time and place set for the trial, the name of the referee, and a statement that the proceeding is being held before a referee agreed to by the parties under chapter 4.48 RCW.

(2) A person interested in attending a trial before a referee appointed under RCW ((~~4.84.010 [4.48.010]~~)) 4.48.010 is entitled to do so as in a trial of a civil action in superior court. Upon request by any person, the referee shall give the person notice of the time and place set for the trial.

Sec. 11. RCW 4.84.250 and 1984 c 258 s 88 are each amended to read as follows:

Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is ((~~seven~~)) twenty-five thousand ((~~five hundred~~)) dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys' fees. ((~~After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars.~~))

Sec. 12. RCW 4.84.280 and 1983 c 282 s 1 are each amended to read as follows:

Offers of settlement shall be served on the adverse party in the manner prescribed by applicable court rules at least ten days prior to trial and for the purposes of determining the prevailing party under RCW 4.84.260 or 4.84.270 such offer shall remain open for a period of ten days unless otherwise agreed by the parties. Offers of settlement shall not be served until thirty days after the completion of the service and filing of the summons and complaint. Offers of settlement shall not be filed or communicated to the trier of the fact until after judgment, at which time a copy of said offer of settlement shall be filed for the purposes of determining attorneys' fees as set forth in RCW 4.84.250.

Sec. 13. RCW 3.66.020 and 1984 c 258 s 41 are each amended to read as follows:

The district court shall have jurisdiction and cognizance of the following civil actions and proceedings if the value of the sum claimed or at issue does not exceed twenty-five thousand dollars, exclusive of interest, costs, and attorneys' fees:

(1) ((~~Of an~~)) Actions arising on contract for the recovery of money only ((~~in which the sum claimed does not exceed seven thousand five hundred dollars~~));

(2) ((~~Of an~~)) Actions for damages for injuries to the person, or for taking or detaining personal property, or for injuring personal property, or for an injury to real property when no issue raised by the answer involves the plaintiff's title to or possession of the same((~~, when the amount of damages claimed does not exceed seven thousand five hundred dollars; also of~~));

(3) Actions to recover the possession of personal property ((~~when the value of such property as alleged in the complaint, does not exceed seven thousand five hundred dollars~~));

((~~(3) Of an~~)) (4) Actions for a penalty ((~~not exceeding seven thousand five hundred dollars~~));

((~~(4) Of an~~)) (5) Actions upon a bond conditioned for the payment of money, ((~~when the amount claimed does not exceed seven thousand five hundred dollars,~~)) though the penalty of the bond exceeds ((~~that sum~~)) the court's jurisdictional limit, the judgment to be given for the sum actually due, not exceeding the amount claimed in the complaint;

((~~(5) Of an~~)) (6) Actions on an undertaking or surety bond taken by the court((~~, when the amount claimed does not exceed seven thousand five hundred dollars~~));

((~~(6) Of an~~)) (7) Actions for damages for fraud in the sale, purchase, or exchange of personal property((~~, when the damages claimed do not exceed seven thousand five hundred dollars~~));

((~~(7)~~)) (8) Proceedings to take and enter judgment on confession of a defendant((~~, when the amount of the judgment confessed does not exceed seven thousand five hundred dollars~~));

((~~(8)~~)) (9) Proceedings to issue writs of attachment, garnishment, and replevin upon goods, chattels, moneys, and effects((~~, when the amount does not exceed seven thousand five hundred dollars~~)); and

((~~(9) Of~~)) (10) All other actions and proceedings of which jurisdiction is specially conferred by statute((~~, when the amount involved does not exceed seven thousand five hundred dollars~~)) and the title to, or right of possession of, or a lien upon real property is not involved.

((The seven thousand five hundred dollar amounts provided in subsections (1) through (9) of this section shall remain in effect until June 30, 1985; effective July 1, 1985, such amount shall be increased to ten thousand dollars.

~~The amounts of money referred to in this section shall be exclusive of interest, costs and attorney's fees.~~))

Sec. 14. RCW 7.75.035 and 1990 c 172 s 1 are each amended to read as follows:

(1) A county legislative authority may impose a surcharge of up to ten dollars on each civil filing fee in district court and a surcharge of up to fifteen dollars on each filing fee for small claims actions for the purpose of funding dispute resolution centers established under this chapter.

(2) Any surcharge imposed shall be collected by the clerk of the court and remitted to the county treasurer ((~~for deposit in a separate~~)). The county treasurer shall remit the surcharge to the state treasurer for deposit in the public safety and education account. Each county remitting funds under this section shall receive an appropriation for the entire amount remitted to be used solely for dispute resolution centers established under this chapter. Money received under this section is not subject to RCW 3.62.020(2) or 3.62.090. The accounts created pursuant to this subsection shall be audited by the state auditor in accordance with RCW 43.09.260.

Sec. 15. RCW 26.12.010 and 1983 c 219 s 1 are each amended to read as follows:

Each superior court shall exercise the jurisdiction conferred by this chapter and while sitting in the exercise of such jurisdiction shall be known and referred to as the "family court." A family law proceeding under this chapter is any proceeding under this title or any proceeding in which the family court is requested to adjudicate or enforce the rights of the parties or their children regarding the determination or modification of ((~~child custody, visitation, or~~)) a temporary or permanent parenting plan, maintenance or child support, or the distribution of property or obligations.

Sec. 16. RCW 26.12.060 and 1988 c 232 s 4 are each amended to read as follows:

The family court commissioners shall: (1) Receive all applications and complaints filed in the family court for the purpose of disposing of them pursuant to this chapter; (2) investigate the facts upon which to base warrants, subpoenas, orders or directions in actions or proceedings filed in or transferred to the family court pursuant to this chapter; (3) for the purpose of this chapter, exercise all the powers and perform all the duties of regular court commissioners; (4) hold conciliation conferences with parties to and hearings in proceedings under this chapter and make written reports of all proceedings had which shall become a part of the record of the family court; (5) provide such supervision in connection with the exercise of its jurisdiction as the judge of the family court may order; (6) cause the orders and findings of the family court to be entered in the same manner as orders and findings are entered in cases in the superior court; (7) cause such other reports to be made and records kept as will indicate the value and extent of such conciliation service; (8) order the parties to participate in mediation proceedings as provided in RCW 26.09.015 or refer the parties to a dispute resolution center established under chapter 7.75 RCW, if the judge finds that such proceedings would be beneficial to the parties, subject to the limitations of RCW 26.09.191; and ((~~(8)~~)) (9) conduct hearings under chapter 13.34 RCW as provided in RCW 13.04.021.

Sec. 17. RCW 43.08.250 and 1985 c 57 s 27 are each amended to read as follows:

The money received by the state treasurer from fees, fines, forfeitures, penalties, reimbursements or assessments by any court organized under Title 3 or 35 RCW, or chapter 2.08 RCW, shall be deposited in the public safety and education account which is hereby created in the state treasury. The legislature shall appropriate the funds in the account to promote traffic safety education, highway safety, criminal justice training, crime victims' compensation, judicial education, the judicial information system, winter recreation parking, dispute resolution centers, and state game programs. All earnings of investments of balances in the public safety and education account shall be credited to the general fund.

Sec. 18. RCW 26.12.220 and 1980 c 124 s 1 are each amended to read as follows:

(1) ((~~The legislative authority of any county may impose a fee in excess of that prescribed in RCW 36.18.010 for the issuance of a marriage license: PROVIDED, That such fee shall not exceed eight dollars.~~

~~(2)~~)) In addition to any other funds used therefor, the ((~~governing body of any~~)) county legislative authority shall use the proceeds from the fee ((~~increase~~)) authorized by ((~~this section~~)) RCW 36.18.010(5)(d) to pay the expenses of family court ((~~under chapter 26.12 RCW~~)). If there is no family court in the county, the legislative authority may provide such services through other county agencies or may contract with a public or private agency or person to provide such services.

((~~(3)~~)) (2) The county legislative authority may establish rules of eligibility for mediation and conciliation services funded under this section so long as its rules do not conflict with rules of the court adopted under chapter 26.12 RCW or any other statute.

((~~(4)~~)) (3) Fees collected under ((~~this section~~)) RCW 36.18.010(5)(d) shall be collected and deposited in the same manner as other county funds are collected and deposited, and shall be maintained in a separate account to be used as provided in this section.

Sec. 19. RCW 36.18.010 and 1989 c 304 s 1 and 1989 c 204 s 6 are each reenacted and amended to read as follows:

County auditors shall collect the following fees for their official services:

(1) For recording instruments, for the first page, legal size (eight and one-half by thirteen inches or less), five dollars; for each additional legal size page, one dollar;

(2) For preparing and certifying copies, for the first legal size page, three dollars; for each additional legal size page, one dollar;

(3) For preparing noncertified copies, for each legal size page, one dollar;

(4) For administering an oath or taking an affidavit, with or without seal, two dollars;

(5) For issuing a marriage license((,)):

(a) Eight dollars((~~, (this fee includes~~)) for taking necessary affidavits, filing returns, indexing, and transmittal of a record of the marriage to the state registrar of vital statistics((~~) plus an additional five-dollar fee~~));

(b) Five dollars for use and support of the prevention of child abuse and neglect activities, to be transmitted monthly to the state treasurer and deposited in the state general fund((~~, which five-dollar~~)). This fee shall expire June 30, 1995((~~, plus an additional ten-dollar fee~~));

(c) Ten dollars to be transmitted monthly to the state treasurer and deposited in the state general fund. The legislature intends to appropriate an amount at least equal to the revenue generated by this fee for the purposes of the displaced homemaker act, chapter 28B.04 RCW; and

(d) Eight dollars for family court or family court services as provided in RCW 26.12.220;

(6) For searching records per hour, eight dollars;

(7) For recording plats, fifty cents for each lot except cemetery plats for which the charge shall be twenty-five cents per lot; also one dollar for each acknowledgment, dedication, and description: PROVIDED, That there shall be a minimum fee of twenty-five dollars per plat;

(8) For recording of miscellaneous records, not listed above, for first legal size page, five dollars; for each additional legal size page, one dollar;

(9) For modernization and improvement of the recording and indexing system, a surcharge as provided in RCW 36.22.170.

NEW SECTION. Sec. 20. A new section is added to chapter 7.04 RCW to read as follows:

Any arbitrator appointed under this chapter is immune from suit in any civil action based on any proceedings or other official acts performed in their capacity as arbitrators, except for acts of willful or wanton misconduct.

NEW SECTION. Sec. 21. A new section is added to chapter 7.04 RCW to read as follows:

All memoranda, work notes or products, or case files of an arbitrator are confidential and privileged and are not subject to disclosure in any civil judicial or administrative proceeding, except when the willful or wanton misconduct of the arbitrator is at issue.

NEW SECTION. Sec. 22. A new section is added to chapter 7.06 RCW to read as follows:

NEW SECTION. Sec. 23. A new section is added to chapter 7.06 RCW to read as follows:

NEW SECTION. Sec. 24. A new section is added to chapter 4.24 RCW to read as follows:

Any mediator appointed by the superior or district court is immune from suit in any civil action based on any proceedings or other official acts performed in their capacity as mediators, except for acts of willful or wanton misconduct.

NEW SECTION. Sec. 25. A new section is added to chapter 4.24 RCW to read as follows:

All memoranda, work notes or products, or case files of a mediator and statements made to a mediator, are confidential and privileged and are not subject to disclosure in any civil judicial or administrative proceeding, except when the willful or wanton misconduct of the mediator is at issue.

NEW SECTION. Sec. 26. A new section is added to chapter 26.09 RCW to read as follows:

NEW SECTION. Sec. 27. A new section is added to chapter 26.09 RCW to read as follows:

NEW SECTION. Sec. 28. A new section is added to chapter 2.56 RCW to read as follows:

The department of community development shall adopt rules of professional conduct for nonlawyer arbitrators, mediators, and conciliators. Prior to adopting such rules the department shall consult with an advisory committee. The advisory committee membership shall include but is not limited to members of the alternative dispute resolution section of the Washington state bar association, and recognized professional nonlawyer arbitrators, mediators, and conciliators.

NEW SECTION. Sec. 29. A new section is added to chapter 3.66 RCW to read as follows:

The state bar association, superior court judge's association, and the district court judge's association shall review the civil jurisdictional limits of the district courts and make their recommendations, if any, to the legislature each biennium beginning December 15, 1992, regarding the increase of the jurisdictional limits.

NEW SECTION. Sec. 30. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Mediation" is the deliberate and knowing use of a neutral third person by disputing parties to help them negotiate a resolution of their dispute. For the purposes of this chapter, a mediation commences at the time of initial contact with a mediator or mediation program and continues until such time as a resolution is agreed to by the parties or the mediation process is terminated.

(2) A "mediation communication" is any communication or behavior in connection with a mediation by or between any party, mediator, mediation program, or any other person present during a mediation session other than a party or mediator.

(3) A "mediation document" is any written material, including copies thereof, prepared for the purpose of or in the course of, or pursuant to, a mediation, including but not limited to, memoranda, notes, files, records, and work products of a mediator, mediation program, or party, except that it shall not include: (a) Agreements by the parties which specify that they may be disclosed or enforced, or (b) summary records of a mediation program necessary to evaluate or monitor the performance of the program.

(4) A "mediation program" is a plan or an organization through which mediators or mediation may be provided.

(5) A "mediator" is a person who performs mediation.

(6) A "party" is a mediation participant other than the mediator and may be a person, public officer, corporation, association, or other organization or entity, either public or private.

NEW SECTION. Sec. 31. A mediation proceeding to resolve any controversy may be held, under the terms and conditions of this chapter, pursuant to:

(1) A written stipulation of all parties to mediate a civil action at any time prior to trial;

(2) A written agreement by two or more parties to mediate any controversy existing between them at the time of the agreement;

(3) A written agreement by two or more parties to participate in mediation of any controversy thereafter arising between them, out of or in relation to such agreement; or

(4) A referral of the parties to mediation by any judge of the superior or district court. If a party to a case files with the court a written objection to the mediation, the action shall be removed from mediation and proceed in a normal fashion.

NEW SECTION. Sec. 32. (1) Parties electing to mediate under this chapter shall select a mediator as provided in their written agreement or as mutually agreed. The court shall appoint a mediator, upon application of any party, in any of the following cases:

(a) When the agreement does not prescribe a method for the appointment of a mediator and the parties cannot mutually agree to the mediator or mediation program;

(b) When the agreement does prescribe a method for the appointment of a mediator, but the mediator has not been appointed and the time within which the appointment was to have occurred has expired; or

(2) During the period of any mediation under this chapter in which a civil action is pending, all trial and discovery time lines and requirements shall be tolled and stayed as to the participants. The tolling shall commence on the date of the written stipulation to mediate or the date of the court referral to mediation and shall end on the date the court is notified in writing of the termination of the mediation by the mediator or a party.

NEW SECTION. Sec. 33. (1) The mediator shall set the times and place for the mediation and notify the parties thereof, and may adjourn or postpone the mediation in his or her discretion.

(2) The mediator, with the consent of the parties, may adopt appropriate rules to facilitate the resolution of the dispute. The mediator may propose settlement terms to the parties either orally or in writing.

(3) Attorneys and other persons who are not parties to a mediation may be included in mediation discussions at the mediator's discretion, with the consent of the parties.

(4) All mediators shall encourage disputing parties to obtain individual legal advice and review of any mediated agreement prior to signing the agreement.

(5) Any agreement reached in mediation shall be in writing and signed by all parties to the agreement. The agreement shall be valid, enforceable, and irrevocable, except upon such grounds as exist in law concerning the validity or revocation of any agreement.

(6) The mediator shall provide written notification to the court within fourteen days of the completion or termination of the mediation. The mediator shall only report the fact of the agreement or the termination of the mediation.

(7) The court shall retain jurisdiction over all pending civil actions which are in mediation and shall issue orders as it deems appropriate.

NEW SECTION. Sec. 34. (1) All mediation documents and mediation communications are privileged and confidential and shall not be disclosed, except as otherwise provided in subsection (2) of this section. The mediation documents and mediation communications are not subject to disclosure through discovery or any other process, and are not admissible into evidence in any civil judicial or administrative proceeding.

(2) There is no privilege and no restriction on disclosure of mediation documents or mediation communications when:

(a) All parties consent in writing to disclosure;

(b) The documents or communications are used in a subsequent action between a party and a mediator or mediation program for damages arising out of the mediation; or

(3) No part of the proceedings of a mediation shall be considered a public record.

NEW SECTION. Sec. 35. Any mediator or mediation program appointed by the court or agreed on by the parties is immune from suit in any civil action based upon the proceedings or other official acts performed in their capacity as mediators, except for acts of willful or wanton misconduct.

NEW SECTION. Sec. 36. (1) Each party to a mediation under this chapter shall be equally responsible for the expense of the mediator, unless otherwise apportioned by the court or specified in the parties' agreement.

(2) Parties in mediation shall be free, at their own expense, to retain jointly or individually, experts, attorneys, fact-finders, arbitrators, and other persons to assist the mediation, and all such dispute resolution efforts shall be subject to the provisions of this chapter.

NEW SECTION. Sec. 37. All mediators and mediation programs providing services under this chapter shall abide by the rules of professional conduct adopted under section 28 of this act.

NEW SECTION. Sec. 38. A new section is added to chapter 13.40 RCW to read as follows:

(1) When a juvenile offender pleads guilty or is found guilty, the court shall provide an opportunity for the victim and the offender to participate in a victim-offender reconciliation program, if such program is available in the county. If such program is not available, the referral shall be to a dispute resolution center. Neither the victim nor the offender shall be required to participate in the program.

(2) The victim-offender reconciliation program shall provide an opportunity for the victim to:

(a) Meet with the offender in a safe, controlled environment;

(b) Give the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim and the victim's family; and

(c) Negotiate a restitution agreement for the damages incurred by the victim as a result of the offense. The agreement may be submitted to the court for its consideration at the time of disposition.

NEW SECTION. Sec. 39. A new section is added to chapter 9.94A RCW to read as follows:

(1) When an offender pleads guilty or is found guilty of a nonviolent offense, the court shall provide an opportunity for the victim and the offender to participate in a victim-offender reconciliation program, if such program is available in the county. If such program is not available, the referral shall be to a dispute resolution center. Neither the victim nor the offender shall be required to participate in the program.

(2) The victim-offender reconciliation program shall provide an opportunity for the victim to:

(a) Meet with the offender in a safe, controlled environment;

(b) Give the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim and the victim's family; and

(c) Negotiate a restitution agreement for the damages incurred by the victim as a result of the offense. The agreement may be submitted to the court for its consideration at the time of sentencing.

Sec. 40. RCW 13.40.150 and 1990 c 3 s 605 are each amended to read as follows:

(1) In disposition hearings all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though such evidence may not be admissible in a hearing on the information. The youth or the youth's counsel and the prosecuting attorney shall be afforded an opportunity to examine and controvert written reports so received and to cross‑examine individuals making reports when such individuals are reasonably available, but sources of confidential information need not be disclosed. The prosecutor and counsel for the juvenile may submit recommendations for disposition.

(2) For purposes of disposition:

(a) Violations which are current offenses count as misdemeanors;

(b) Violations may not count as part of the offender's criminal history;

(3) Before entering a dispositional order as to a respondent found to have committed an offense, the court shall hold a disposition hearing, at which the court shall:

(a) Consider the facts supporting the allegations of criminal conduct by the respondent;

(b) Consider information and arguments offered by parties and their counsel;

(d) Afford the respondent and the respondent's parent, guardian, or custodian an opportunity to speak in the respondent's behalf;

(e) Allow the victim or a representative of the victim and an investigative law enforcement officer to speak;

(f) Consider any restitution agreement reached pursuant to section 38 of this act;

(g) Determine the amount of restitution owing to the victim, if any;

((~~(g)~~)) (h) Determine whether the respondent is a serious offender, a middle offender, or a minor or first offender;

((~~(h)~~)) (i) Consider whether or not any of the following mitigating factors exist:

(i) The respondent's conduct neither caused nor threatened serious bodily injury or the respondent did not contemplate that his or her conduct would cause or threaten serious bodily injury;

(ii) The respondent acted under strong and immediate provocation;

(iii) The respondent was suffering from a mental or physical condition that significantly reduced his or her culpability for the offense though failing to establish a defense;

(iv) Prior to his or her detection, the respondent compensated or made a good faith attempt to compensate the victim for the injury or loss sustained; and

(v) There has been at least one year between the respondent's current offense and any prior criminal offense;

((~~(i)~~)) (j) Consider whether or not any of the following aggravating factors exist:

(i) In the commission of the offense, or in flight therefrom, the respondent inflicted or attempted to inflict serious bodily injury to another;

(ii) The offense was committed in an especially heinous, cruel, or depraved manner;

(iii) The victim or victims were particularly vulnerable;

(iv) The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement;

(v) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.127;

(vi) The respondent was the leader of a criminal enterprise involving several persons; and

(vii) There are other complaints which have resulted in diversion or a finding or plea of guilty but which are not included as criminal history.

(4) The following factors may not be considered in determining the punishment to be imposed:

(a) The sex of the respondent;

(b) The race or color of the respondent or the respondent's family;

(d) The economic or social class of the respondent or the respondent's family; and

(e) Factors indicating that the respondent may be or is a dependent child within the meaning of this chapter.

(5) A court may not commit a juvenile to a state institution solely because of the lack of facilities, including treatment facilities, existing in the community.

Sec. 41. RCW 13.40.190 and 1987 c 281 s 5 are each amended to read as follows:

(1) In its dispositional order, the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. In addition, restitution may be ordered for loss or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which, pursuant to a plea agreement, are not prosecuted. The payment of restitution shall be in addition to any punishment which is imposed pursuant to the other provisions of this chapter. The court shall consider any restitution agreement reached pursuant to section 38 of this act. The court may determine the amount, terms, and conditions of the restitution. Restitution may include the costs of counseling reasonably related to the offense. If the respondent participated in the crime with another person or other persons, all such participants shall be jointly and severally responsible for the payment of restitution. The court may not require the respondent to pay full or partial restitution if the respondent reasonably satisfies the court that he or she does not have the means to make full or partial restitution and could not reasonably acquire the means to pay such restitution. In cases where an offender has been committed to the department for a period of confinement exceeding fifteen weeks, restitution may be waived.

(2) If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order. The restitution to victims named in the order shall be paid prior to any payment for other penalties or monetary assessments.

(3) A respondent under obligation to pay restitution may petition the court for modification of the restitution order.

NEW SECTION. Sec. 42. RCW 4.84.100 and Code of 1881 s 515, 1877 p 109 s 519, & 1854 p 203 s 377 are each repealed.

NEW SECTION. Sec. 43. Sections 30 through 37 of this act shall constitute a new chapter in Title 7 RCW.

NEW SECTION. Sec. 44. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 45. (1) Sections 30 through 37 of this act shall take effect July 1, 1992.

(2) The reminder of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1991.