Washington State House of Representatives Office of Program Research |
BILL ANALYSIS |
Judiciary Committee | |
ESSB 5173
Title: An act relating to the uniform mediation act.
Brief Description: Enacting the Uniform Mediation Act.
Sponsors: Senators Johnson, Weinstein, Esser and Kline.
Brief Summary of Bill |
|
Hearing Date:
Staff: Trudes Tango Hutcheson (786-7384).
Background:
General
Mediation is an alternative dispute resolution process in which the parties use a neutral third
party to help them negotiate a settlement or compromise to their dispute. The mediator does not
act as a judge and does not make decisions or issue orders in the case.
Mediation can be required by written agreements between the parties, or by court rules or
statutes. For example, specific statutes require all causes of actions for damages in health care
cases to be mediated prior to trial. Court rules govern the procedures and confidentiality of those
mandatory mediations. In family law matters, mediation is often required by local court rules or
by the parties' own agreed upon parenting plan.
Privilege and confidentiality in mediation proceedings
Generally, communications made and materials submitted in connection with the mediation are
privileged and confidential and are not subject to disclosure in any judicial or administrative
proceeding. However, this privilege and confidentiality does not apply:
Privilege and confidentiality in mediations conducted by a state or federal agency under
collective bargaining laws are governed by the agency's rules.
Statutes governing dispute resolution centers established by a municipality, county, or nonprofit
organization specify what types of mediation communications are privileged and confidential.
Work product and case files in those dispute resolution centers are confidential and privileged
unless the materials were submitted to purposefully avoid discovery of the material. Threats to
injure any person or damage a party's property are not privileged and confidential to the extent
such communication may be relevant evidence in a criminal matter.
Statutes and court rules applicable to family law mediations generally provide that those
mediations are confidential unless it is a postdecree mediation required under a parenting plan.
Other provisions
Generally, the Open Public Meetings Act (Act) requires all meetings of a public agency to be
open and public. Some of the exceptions provided in the Act include collective bargaining
sessions and quasi-judicial matters between named parties as distinguished from matters having
general effect on the public. In addition, the Public Disclosure Act generally requires state
agencies to make all documents available to the public unless specifically exempted by statute.
There are federal laws governing electronic records and signatures in interstate or foreign
commerce. Among other things, the federal law provides that a signature, contract, or other
record relating to a transaction may not be denied legal effect solely because it is in electronic
form, and a contract may not be denied legal effect solely because an electronic signature or
electronic record was used in its formation. The federal act allows a state statute to modify,
limit, or supersede the federal provisions under certain circumstances.
Summary of Bill:
The Uniform Mediation Act (UMA), which addresses privilege and confidentiality of mediation
communications, is adopted.
Scope and applicability
The UMA applies to mediations made on or after the effective date of the UMA and when:
The UMA does not apply to mediations:
Privilege and confidentiality
Unless subject to the Open Public Meetings Act, mediation communications are confidential to
the extent agreed by the parties or provided by other law or rule.
With certain exceptions, a mediation communication is privileged and not subject to discovery or
admissible in a proceeding unless the privilege is waived or is precluded from privilege.
The UMA provides broad privileges against disclosure of mediation communications. A
mediation party may refuse to disclose and may prevent any other person from disclosing a
mediation communication. The mediator and any nonparty mediation participant have the
privilege of nondisclosure as to their own mediation communications.
Communications are not made privileged simply because it is used in a mediation if the
communication would be admissible or subject to discovery otherwise.
Privilege and confidentiality in mediations conducted by federal or state agencies under
collective bargaining laws are not governed by the UMA.
Waivers and exceptions to the privileges
The parties may agree in advance that all or part of a mediation is not privileged. However, a
person's communications made before the person received actual notice of the party's agreement
is still privileged under the UMA.
A privilege may be waived either in a record or orally during a proceeding if it is expressly
waived by the parties to the mediation and by the person who made the communication.
A person who intentionally uses a mediation to plan or commit a crime or to conceal an ongoing
crime is precluded from asserting the privileges.
A person who discloses a mediation communication that prejudices another person in a
proceeding is precluded from asserting a privilege to the extent necessary for the prejudiced
person to respond to the disclosure.
The privilege also does not apply to a mediation communication that is:
Even if a mediation communication would be privileged, such a communication can be disclosed
in a criminal court proceeding involving a felony if a court finds that the mediation
communication is not otherwise available and the need for disclosure of the communication
substantially outweighs the interest in protecting confidentiality. This exception to the privilege
also applies in a proceeding to prove a claim to rescind or reform or defend a contract arising out
of the mediation.
Records of mediation communications that are privileged are exempt from the public disclosure
laws.
A mediator may disclose:
A mediator may not make a report, assessment, evaluation, recommendation, finding, or other
communication about a mediation to a court, administrative agency, or other authority that may
make a ruling on the dispute that is the subject of the mediation.
The confidentiality of mediation communications in family law mediations that are postdecree
and required by a parenting plan is narrowed. Such communications are not privileged for the
purpose of proving:
When mediation-arbitration is required under the parenting plan and the same person acts as both
mediator and arbitrator, then communications in the mediation phase can be disclosed during the
arbitration phase.
Mediator's disclosure of conflicts
Before accepting a mediation, a potential mediator must make an inquiry that is reasonable under
the circumstances to determine if there are any known facts that a reasonable individual would
consider likely to affect the impartiality of the mediator. The individual must also disclose any
known fact to the parties as soon as practical before accepting a mediation. If a person fails to
disclose such facts in violation of the UMA, the person is precluded from asserting the privileges
provided by the UMA.
Other provisions
The UMA does not require a mediator to have any special qualification by background or
profession.
A party may have an attorney or other individual accompany the party in a mediation unless the
dispute being mediated is the subject of a small claims court proceeding. In that case, an attorney
may accompany the party only if the small claims statutes allow it.
The UMA expressly modifies, limits, or supersedes the federal Electronic Signatures in Global
and National Commerce Act, except as it pertains to electronic delivery of certain notices.
Statutes authorizing mediation in other contexts are amended to reference application of the
UMA. Definitions of terms are provided.
Appropriation: None.
Fiscal Note: Not requested.
Effective Date: The bill takes effect on January 1, 2006.