5173-SAMSKLINZ0590.2SSB 5173S AMD17By Senators Kline, JohnsonADOPTED 03/02/2005 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. TITLE. This act may be cited as theUniform Mediation Act.NEW SECTION.Sec. DEFINITIONS. In this chapter: (1) "Mediation" means a process in which a mediator facilitatescommunication and negotiation between parties to assist them inreaching a voluntary agreement regarding their dispute. (2) "Mediation communication" means a statement, whether oral or ina record or verbal or nonverbal, that occurs during a mediation or ismade for purposes of considering, conducting, participating in,initiating, continuing, or reconvening a mediation or retaining amediator. (3) "Mediator" means an individual who conducts a mediation. (4) "Nonparty participant" means a person, other than a party ormediator, that participates in a mediation. (5) "Mediation party" means a person that participates in amediation and whose agreement is necessary to resolve the dispute. (6) "Person" means an individual, corporation, business trust,estate, trust, partnership, limited liability company, association,joint venture, government; governmental subdivision, agency, orinstrumentality; or public corporation, or any other legal orcommercial entity. (7) "Proceeding" means: (a) A judicial, administrative, arbitral, or other adjudicativeprocess, including related prehearing and posthearing motions,conferences, and discovery; or (b) A legislative hearing or similar process. 1 (8) "Record" means information that is inscribed on a tangiblemedium or that is stored in an electronic or other medium and isretrievable in perceivable form. (9) "Sign" means: (a) To execute or adopt a tangible symbol with the present intentto authenticate a record; or (b) To attach or logically associate an electronic symbol, sound,or process to or with a record with the present intent to authenticatea record.NEW SECTION.Sec. SCOPE. (1) Except as otherwise provided insubsection (2) or (3) of this section, this chapter applies to amediation in which: (a) The mediation parties are required to mediate by statute orcourt or administrative agency rule or referred to mediation by acourt, administrative agency, or arbitrator; (b) The mediation parties and the mediator agree to mediate in arecord that demonstrates an expectation that mediation communicationswill be privileged against disclosure; or (c) The mediation parties use as a mediator an individual who holdshimself or herself out as a mediator or the mediation is provided by aperson that holds itself out as providing mediation. (2) This chapter does not apply to a mediation: (a) Conducted by a judge who might make a ruling on the case; or (b) Conducted under the auspices of: (i) A primary or secondary school if all the parties are students;or (ii) A correctional institution for youths if all the parties areresidents of that institution. (3) If the parties agree in advance in a signed record, or a recordof proceeding reflects agreement by the parties, that all or part of amediation is not privileged, the privileges under sections 4 through 6of this act do not apply to the mediation or part agreed upon.However, sections 4 through 6 of this act apply to a mediationcommunication made by a person that has not received actual notice ofthe agreement before the communication is made. 2 NEW SECTION.Sec. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY;DISCOVERY. (1) Except as otherwise provided in section 6 of this act,a mediation communication is privileged as provided in subsection (2)of this section and is not subject to discovery or admissible inevidence in a proceeding unless waived or precluded as provided bysection 5 of this act. (2) In a proceeding, the following privileges apply: (a) A mediation party may refuse to disclose, and may prevent anyother person from disclosing, a mediation communication; (b) A mediator may refuse to disclose a mediation communication,and may prevent any other person from disclosing a mediationcommunication of the mediator; and (c) A nonparty participant may refuse to disclose, and may preventany other person from disclosing, a mediation communication of thenonparty participant. (3) Evidence or information that is otherwise admissible or subjectto discovery does not become inadmissible or protected from discoverysolely by reason of its disclosure or use in a mediation.NEW SECTION.Sec. WAIVER AND PRECLUSION OF PRIVILEGE. (1) Aprivilege under section 4 of this act may be waived in a record ororally during a proceeding if it is expressly waived by all parties tothe mediation and: (a) In the case of the privilege of a mediator, it is expresslywaived by the mediator; and (b) In the case of the privilege of a nonparty participant, it isexpressly waived by the nonparty participant. (2) A person that discloses or makes a representation about amediation communication which prejudices another person in a proceedingis precluded from asserting a privilege under section 4 of this act,but only to the extent necessary for the person prejudiced to respondto the representation or disclosure. (3) A person that intentionally uses a mediation to plan, attemptto commit, or commit a crime, or to conceal an ongoing crime or ongoingcriminal activity is precluded from asserting a privilege under section4 of this act. 3 NEW SECTION.Sec. EXCEPTIONS TO PRIVILEGE. (1) There is noprivilege under section 4 of this act for a mediation communicationthat is: (a) In an agreement evidenced by a record signed by all parties tothe agreement; (b) Made during a session of a mediation which is open, or isrequired by law to be open, to the public; (c) A threat or statement of a plan to inflict bodily injury orcommit a crime of violence; (d) Intentionally used to plan a crime, attempt to commit or commita crime, or to conceal an ongoing crime or ongoing criminal activity; (e) Sought or offered to prove or disprove a claim or complaint ofprofessional misconduct or malpractice filed against a mediator; (f) Except as otherwise provided in subsection (3) of this section,sought or offered to prove or disprove a claim or complaint ofprofessional misconduct or malpractice filed against a mediation party,nonparty participant, or representative of a party based on conductoccurring during a mediation; or (g) Sought or offered to prove or disprove abuse, neglect,abandonment, or exploitation in a proceeding in which a child or adultprotective services agency is a party, unless the public agencyparticipates in the child or adult protection mediation. (2) There is no privilege under section 4 of this act if a courtfinds, after a hearing in camera, that the party seeking discovery orthe proponent of the evidence has shown that the evidence is nototherwise available, that there is a need for the evidence thatsubstantially outweighs the interest in protecting confidentiality, andthat the mediation communication is sought or offered in: (a) A criminal court proceeding involving a felony; or (b) Except as otherwise provided in subsection (3) of this section,a proceeding to prove a claim to rescind or reform or a defense toavoid liability on a contract arising out of the mediation. (3) A mediator may not be compelled to provide evidence of amediation communication referred to in subsection (1)(f) or (2)(b) ofthis section. (4) If a mediation communication is not privileged under subsection(1) or (2) of this section, only the portion of the communicationnecessary for the application of the exception from nondisclosure may 4 be admitted. Admission of evidence under subsection (1) or (2) of thissection does not render the evidence, or any other mediationcommunication, discoverable or admissible for any other purpose. (5) Records of mediation communications that are privileged underthis chapter are exempt from the requirements of chapter 42.17 RCW.NEW SECTION.Sec. PROHIBITED MEDIATOR REPORTS. (1) Except asprovided in subsection (2) of this section, a mediator may not make areport, assessment, evaluation, recommendation, finding, or othercommunication regarding a mediation to a court, administrative agency,or other authority that may make a ruling on the dispute that is thesubject of the mediation. (2) A mediator may disclose: (a) Whether the mediation occurred or has terminated, whether asettlement was reached, attendance, and efforts to schedule a mediationordered by a court, administrative agency, or other authority that maymake a ruling on the dispute; (b) A mediation communication as permitted under section 6 of thisact; or (c) A mediation communication evidencing abuse, neglect,abandonment, or exploitation of an individual to a public agencyresponsible for protecting individuals against such mistreatment. (3) A communication made in violation of subsection (1) of thissection may not be considered by a court, administrative agency, orarbitrator.NEW SECTION.Sec. CONFIDENTIALITY. Unless subject to chapter42.30 RCW, mediation communications are confidential to the extentagreed by the parties or provided by other law or rule of this state.NEW SECTION.Sec. MEDIATOR'S DISCLOSURE OF CONFLICTS OFINTEREST; BACKGROUND. (1) Before accepting a mediation, an individualwho is requested to serve as a mediator shall: (a) Make an inquiry that is reasonable under the circumstances todetermine whether there are any known facts that a reasonableindividual would consider likely to affect the impartiality of themediator, including a financial or personal interest in the outcome of 5 the mediation and an existing or past relationship with a mediationparty or foreseeable participant in the mediation; and (b) Disclose any such known fact to the mediation parties as soonas is practical before accepting a mediation. (2) If a mediator learns any fact described in subsection (1)(a) ofthis section after accepting a mediation, the mediator shall discloseit as soon as is practicable. (3) At the request of a mediation party, an individual who isrequested to serve as a mediator shall disclose the mediator'squalifications to mediate a dispute. (4) A person that violates subsection (1) or (2) of this section isprecluded by the violation from asserting a privilege under section 4of this act. (5) Subsections (1) through (3) of this section do not apply to anindividual acting as a judge. (6) This chapter does not require that a mediator have a specialqualification by background or profession.NEW SECTION.Sec. PARTICIPATION IN MEDIATION. An attorney orother individual designated by a party may accompany the party to andparticipate in a mediation, except that if the dispute being mediatedis the subject of pending proceedings under chapter 12.40 RCW, then aparty may not be represented by an attorney in mediation unless theparty may be represented by an attorney in the proceedings underchapter 12.40 RCW. A waiver of participation given before themediation may be rescinded.NEW SECTION.Sec. RELATION TO ELECTRONIC SIGNATURES IN GLOBALAND NATIONAL COMMERCE ACT. This chapter modifies, limits, orsupersedes the federal electronic signatures in global and nationalcommerce act (15 U.S.C. Sec. 7001 et seq.), but this chapter does notmodify, limit, or supersede section 101(c) of that act or authorizeelectronic delivery of any of the notices described in section 103(b)of that act.NEW SECTION.Sec. UNIFORMITY OF APPLICATION AND CONSTRUCTION.In applying and construing this chapter, consideration should be given 6 to the need to promote uniformity of the law with respect to itssubject matter among states that enact it.Sec. RCW 42.17.310 and 2003 c 277 s 3 and 2003 c 124 s 1 areeach reenacted and amended to read as follows: (1) The following are exempt from public inspection and copying: (a) Personal information in any files maintained for students inpublic schools, patients or clients of public institutions or publichealth agencies, or welfare recipients. (b) Personal information in files maintained for employees,appointees, or elected officials of any public agency to the extentthat disclosure would violate their right to privacy. (c) Information required of any taxpayer in connection with theassessment or collection of any tax if the disclosure of theinformation to other persons would (i) be prohibited to such persons byRCW 84.08.210, 82.32.330, 84.40.020, or 84.40.340 or (ii) violate thetaxpayer's right to privacy or result in unfair competitivedisadvantage to the taxpayer. (d) Specific intelligence information and specific investigativerecords compiled by investigative, law enforcement, and penologyagencies, and state agencies vested with the responsibility todiscipline members of any profession, the nondisclosure of which isessential to effective law enforcement or for the protection of anyperson's right to privacy. (e) Information revealing the identity of persons who are witnessesto or victims of crime or who file complaints with investigative, lawenforcement, or penology agencies, other than the public disclosurecommission, if disclosure would endanger any person's life, physicalsafety, or property. If at the time a complaint is filed thecomplainant, victim or witness indicates a desire for disclosure ornondisclosure, such desire shall govern. However, all complaints filedwith the public disclosure commission about any elected official orcandidate for public office must be made in writing and signed by thecomplainant under oath. (f) Test questions, scoring keys, and other examination data usedto administer a license, employment, or academic examination. (g) Except as provided by chapter 8.26 RCW, the contents of realestate appraisals, made for or by any agency relative to the 7 acquisition or sale of property, until the project or prospective saleis abandoned or until such time as all of the property has beenacquired or the property to which the sale appraisal relates is sold,but in no event shall disclosure be denied for more than three yearsafter the appraisal. (h) Valuable formulae, designs, drawings, computer source code orobject code, and research data obtained by any agency within five yearsof the request for disclosure when disclosure would produce privategain and public loss. (i) Preliminary drafts, notes, recommendations, and intraagencymemorandums in which opinions are expressed or policies formulated orrecommended except that a specific record shall not be exempt whenpublicly cited by an agency in connection with any agency action. (j) Records which are relevant to a controversy to which an agencyis a party but which records would not be available to another partyunder the rules of pretrial discovery for causes pending in thesuperior courts. (k) Records, maps, or other information identifying the location ofarchaeological sites in order to avoid the looting or depredation ofsuch sites. (l) Any library record, the primary purpose of which is to maintaincontrol of library materials, or to gain access to information, whichdiscloses or could be used to disclose the identity of a library user. (m) Financial information supplied by or on behalf of a person,firm, or corporation for the purpose of qualifying to submit a bid orproposal for (i) a ferry system construction or repair contract asrequired by RCW 47.60.680 through 47.60.750 or (ii) highwayconstruction or improvement as required by RCW 47.28.070. (n) Railroad company contracts filed prior to July 28, 1991, withthe utilities and transportation commission under RCW 81.34.070, exceptthat the summaries of the contracts are open to public inspection andcopying as otherwise provided by this chapter. (o) Financial and commercial information and records supplied byprivate persons pertaining to export services provided pursuant tochapter 43.163 RCW and chapter 53.31 RCW, and by persons pertaining toexport projects pursuant to RCW 43.23.035. (p) Financial disclosures filed by private vocational schools underchapters 28B.85 and 28C.10 RCW. 8 (q) Records filed with the utilities and transportation commissionor attorney general under RCW 80.04.095 that a court has determined areconfidential under RCW 80.04.095. (r) Financial and commercial information and records supplied bybusinesses or individuals during application for loans or programservices provided by chapters 43.163, 43.160, 43.330, and 43.168 RCW,or during application for economic development loans or programservices provided by any local agency. (s) Membership lists or lists of members or owners of interests ofunits in timeshare projects, subdivisions, camping resorts,condominiums, land developments, or commoninterest communitiesaffiliated with such projects, regulated by the department oflicensing, in the files or possession of the department. (t) All applications for public employment, including the names ofapplicants, resumes, and other related materials submitted with respectto an applicant. (u) The residential addresses or residential telephone numbers ofemployees or volunteers of a public agency which are held by any publicagency in personnel records, public employment related records, orvolunteer rosters, or are included in any mailing list of employees orvolunteers of any public agency. (v) The residential addresses and residential telephone numbers ofthe customers of a public utility contained in the records or listsheld by the public utility of which they are customers, except thatthis information may be released to the division of child support orthe agency or firm providing child support enforcement for anotherstate under Title IVD of the federal social security act, for theestablishment, enforcement, or modification of a support order. (w)(i) The federal social security number of individuals governedunder chapter 18.130 RCW maintained in the files of the department ofhealth, except this exemption does not apply to requests made directlyto the department from federal, state, and local agencies ofgovernment, and national and state licensing, credentialing,investigatory, disciplinary, and examination organizations; (ii) thecurrent residential address and current residential telephone number ofa health care provider governed under chapter 18.130 RCW maintained inthe files of the department, if the provider requests that thisinformation be withheld from public inspection and copying, and 9 provides to the department an accurate alternate or business addressand business telephone number. On or after January 1, 1995, thecurrent residential address and residential telephone number of ahealth care provider governed under RCW 18.130.040 maintained in thefiles of the department shall automatically be withheld from publicinspection and copying unless the provider specifically requests theinformation be released, and except as provided for under RCW42.17.260(9). (x) Information obtained by the board of pharmacy as provided inRCW 69.45.090. (y) Information obtained by the board of pharmacy or the departmentof health and its representatives as provided in RCW 69.41.044,69.41.280, and 18.64.420. (z) Financial information, business plans, examination reports, andany information produced or obtained in evaluating or examining abusiness and industrial development corporation organized or seekingcertification under chapter 31.24 RCW. (aa) Financial and commercial information supplied to the stateinvestment board by any person when the information relates to theinvestment of public trust or retirement funds and when disclosurewould result in loss to such funds or in private loss to the providersof this information. (bb) Financial and valuable trade information under RCW 51.36.120. (cc) Client records maintained by an agency that is a domesticviolence program as defined in RCW 70.123.020 or 70.123.075 or a rapecrisis center as defined in RCW 70.125.030. (dd) Information that identifies a person who, while an agencyemployee: (i) Seeks advice, under an informal process established bythe employing agency, in order to ascertain his or her rights inconnection with a possible unfair practice under chapter 49.60 RCWagainst the person; and (ii) requests his or her identity or anyidentifying information not be disclosed. (ee) Investigative records compiled by an employing agencyconducting a current investigation of a possible unfair practice underchapter 49.60 RCW or of a possible violation of other federal, state,or local laws prohibiting discrimination in employment. (ff) Business related information protected from public inspectionand copying under RCW 15.86.110. 10 (gg) Financial, commercial, operations, and technical and researchinformation and data submitted to or obtained by the clean Washingtoncenter in applications for, or delivery of, program services underchapter 70.95H RCW. (hh) Information and documents created specifically for, andcollected and maintained by a quality improvement committee pursuant toRCW 43.70.510 or 70.41.200, or by a peer review committee under RCW4.24.250, regardless of which agency is in possession of theinformation and documents. (ii) Personal information in files maintained in a data basecreated under RCW 43.07.360. (jj) Financial and commercial information requested by the publicstadium authority from any person or organization that leases or usesthe stadium and exhibition center as defined in RCW 36.102.010. (kk) Names of individuals residing in emergency or transitionalhousing that are furnished to the department of revenue or a countyassessor in order to substantiate a claim for property tax exemptionunder RCW 84.36.043. (ll) The names, residential addresses, residential telephonenumbers, and other individually identifiable records held by an agencyin relation to a vanpool, carpool, or other ridesharing program orservice. However, these records may be disclosed to other persons whoapply for ridematching services and who need that information in orderto identify potential riders or drivers with whom to share rides. (mm) The personally identifying information of current or formerparticipants or applicants in a paratransit or other transit serviceoperated for the benefit of persons with disabilities or elderlypersons. (nn) The personally identifying information of persons who acquireand use transit passes and other fare payment media including, but notlimited to, stored value smart cards and magnetic strip cards, exceptthat an agency may disclose this information to a person, employer,educational institution, or other entity that is responsible, in wholeor in part, for payment of the cost of acquiring or using a transitpass or other fare payment media, or to the news media when reportingon public transportation or public safety. This information may alsobe disclosed at the agency's discretion to governmental agencies orgroups concerned with public transportation or public safety. 11 (oo) Proprietary financial and commercial information that thesubmitting entity, with review by the department of health,specifically identifies at the time it is submitted and that isprovided to or obtained by the department of health in connection withan application for, or the supervision of, an antitrust exemptionsought by the submitting entity under RCW 43.72.310. If a request forsuch information is received, the submitting entity must be notified ofthe request. Within ten business days of receipt of the notice, thesubmitting entity shall provide a written statement of the continuingneed for confidentiality, which shall be provided to the requester.Upon receipt of such notice, the department of health shall continue totreat information designated under this section as exempt fromdisclosure. If the requester initiates an action to compel disclosureunder this chapter, the submitting entity must be joined as a party todemonstrate the continuing need for confidentiality. (pp) Records maintained by the board of industrial insuranceappeals that are related to appeals of crime victims' compensationclaims filed with the board under RCW 7.68.110. (qq) Financial and commercial information supplied by or on behalfof a person, firm, corporation, or entity under chapter 28B.95 RCWrelating to the purchase or sale of tuition units and contracts for thepurchase of multiple tuition units. (rr) Any records of investigative reports prepared by any state,county, municipal, or other law enforcement agency pertaining to sexoffenses contained in chapter 9A.44 RCW or sexually violent offenses asdefined in RCW 71.09.020, which have been transferred to the Washingtonassociation of sheriffs and police chiefs for permanent electronicretention and retrieval pursuant to RCW 40.14.070(2)(b). (ss) Credit card numbers, debit card numbers, electronic checknumbers, card expiration dates, or bank or other financial accountnumbers, except when disclosure is expressly required by or governed byother law. (tt) Financial information, including but not limited to accountnumbers and values, and other identification numbers supplied by or onbehalf of a person, firm, corporation, limited liability company,partnership, or other entity related to an application for a liquorlicense, gambling license, or lottery retail license. 12 (uu) Records maintained by the employment security department andsubject to chapter 50.13 RCW if provided to another individual ororganization for operational, research, or evaluation purposes. (vv) Individually identifiable information received by the workforce training and education coordinating board for research orevaluation purposes. (ww) Those portions of records assembled, prepared, or maintainedto prevent, mitigate, or respond to criminal terrorist acts, which areacts that significantly disrupt the conduct of government or of thegeneral civilian population of the state or the United States and thatmanifest an extreme indifference to human life, the public disclosureof which would have a substantial likelihood of threatening publicsafety, consisting of: (i) Specific and unique vulnerability assessments or specific andunique response or deployment plans, including compiled underlying datacollected in preparation of or essential to the assessments, or to theresponse or deployment plans; and (ii) Records not subject to public disclosure under federal lawthat are shared by federal or international agencies, and informationprepared from national security briefings provided to state or localgovernment officials related to domestic preparedness for acts ofterrorism. (xx) Commercial fishing catch data from logbooks required to beprovided to the department of fish and wildlife under RCW 77.12.047,when the data identifies specific catch location, timing, ormethodology and the release of which would result in unfair competitivedisadvantage to the commercial fisher providing the catch data.However, this information may be released to government agenciesconcerned with the management of fish and wildlife resources. (yy) Sensitive wildlife data obtained by the department of fish andwildlife. However, sensitive wildlife data may be released togovernment agencies concerned with the management of fish and wildliferesources. Sensitive wildlife data includes: (i) The nesting sites or specific locations of endangered speciesdesignated under RCW 77.12.020, or threatened or sensitive speciesclassified by rule of the department of fish and wildlife; (ii) Radio frequencies used in, or locational data generated by,telemetry studies; or 13 (iii) Other location data that could compromise the viability of aspecific fish or wildlife population, and where at least one of thefollowing criteria are met: (A) The species has a known commercial or black market value; (B) There is a history of malicious take of that species; or (C) There is a known demand to visit, take, or disturb, and thespecies behavior or ecology renders it especially vulnerable or thespecies has an extremely limited distribution and concentration. (zz) The personally identifying information of persons who acquirerecreational licenses under RCW 77.32.010 or commercial licenses underchapter 77.65 or 77.70 RCW, except name, address of contact used by thedepartment, and type of license, endorsement, or tag. However, thedepartment of fish and wildlife may disclose personally identifyinginformation to: (i) Government agencies concerned with the management of fish andwildlife resources; (ii) The department of social and health services, child supportdivision, and to the department of licensing in order to implement RCW77.32.014 and 46.20.291; and (iii) Law enforcement agencies for the purpose of firearmpossession enforcement under RCW 9.41.040. (aaa)(i) Discharge papers of a veteran of the armed forces of theUnited States filed at the office of the county auditor before July 1,2002, that have not been commingled with other recorded documents.These records will be available only to the veteran, the veteran's nextof kin, a deceased veteran's properly appointed personal representativeor executor, a person holding that veteran's general power of attorney,or to anyone else designated in writing by that veteran to receive therecords. (ii) Discharge papers of a veteran of the armed forces of theUnited States filed at the office of the county auditor before July 1,2002, that have been commingled with other records, if the veteran hasrecorded a "request for exemption from public disclosure of dischargepapers" with the county auditor. If such a request has been recorded,these records may be released only to the veteran filing the papers,the veteran's next of kin, a deceased veteran's properly appointedpersonal representative or executor, a person holding the veteran's 14 general power of attorney, or anyone else designated in writing by theveteran to receive the records. (iii) Discharge papers of a veteran filed at the office of thecounty auditor after June 30, 2002, are not public records, but will beavailable only to the veteran, the veteran's next of kin, a deceasedveteran's properly appointed personal representative or executor, aperson holding the veteran's general power of attorney, or anyone elsedesignated in writing by the veteran to receive the records. (iv) For the purposes of this subsection (1)(aaa), next of kin ofdeceased veterans have the same rights to full access to the record.Next of kin are the veteran's widow or widower who has not remarried,son, daughter, father, mother, brother, and sister. (bbb) Those portions of records containing specific and uniquevulnerability assessments or specific and unique emergency and escaperesponse plans at a city, county, or state adult or juvenilecorrectional facility, the public disclosure of which would have asubstantial likelihood of threatening the security of a city, county,or state adult or juvenile correctional facility or any individual'ssafety. (ccc) Information compiled by school districts or schools in thedevelopment of their comprehensive safe school plans pursuant to RCW28A.320.125, to the extent that they identify specific vulnerabilitiesof school districts and each individual school. (ddd) Information regarding the infrastructure and security ofcomputer and telecommunications networks, consisting of securitypasswords, security access codes and programs, access codes for securesoftware applications, security and service recovery plans, securityrisk assessments, and security test results to the extent that theyidentify specific system vulnerabilities. (eee) Information obtained and exempted or withheld from publicinspection by the health care authority under RCW 41.05.026, whetherretained by the authority, transferred to another state purchasedhealth care program by the authority, or transferred by the authorityto a technical review committee created to facilitate the development,acquisition, or implementation of state purchased health care underchapter 41.05 RCW. (fff) Proprietary data, trade secrets, or other information thatrelates to: (i) A vendor's unique methods of conducting business; (ii) 15 data unique to the product or services of the vendor; or (iii)determining prices or rates to be charged for services, submitted byany vendor to the department of social and health services for purposesof the development, acquisition, or implementation of state purchasedhealth care as defined in RCW 41.05.011. (ggg) Records of mediation communications that are privileged underchapter 7. RCW (sections 1 through 12 and 20 through 23 of this act). (2) Except for information described in subsection (1)(c)(i) ofthis section and confidential income data exempted from publicinspection pursuant to RCW 84.40.020, the exemptions of this sectionare inapplicable to the extent that information, the disclosure ofwhich would violate personal privacy or vital governmental interests,can be deleted from the specific records sought. No exemption may beconstrued to permit the nondisclosure of statistical information notdescriptive of any readily identifiable person or persons. (3) Inspection or copying of any specific records exempt under theprovisions of this section may be permitted if the superior court inthe county in which the record is maintained finds, after a hearingwith notice thereof to every person in interest and the agency, thatthe exemption of such records is clearly unnecessary to protect anyindividual's right of privacy or any vital governmental function. (4) Agency responses refusing, in whole or in part, inspection ofany public record shall include a statement of the specific exemptionauthorizing the withholding of the record (or part) and a briefexplanation of how the exemption applies to the record withheld.Sec. RCW 5.60.070 and 1993 c 492 s 422 are each amended toread as follows: (1) If there is a court order to mediate, a written agreementbetween the parties to mediate, or if mediation is mandated under RCW7.70.100, then any communication made or materials submitted in, or inconnection with, the mediation proceeding, whether made or submitted toor by the mediator, a mediation organization, a party, or any personpresent, are privileged and confidential and are not subject todisclosure in any judicial or administrative proceeding except: (a) When all parties to the mediation agree, in writing, todisclosure; 16 (b) When the written materials or tangible evidence are otherwisesubject to discovery, and were not prepared specifically for use in andactually used in the mediation proceeding; (c) When a written agreement to mediate permits disclosure; (d) When disclosure is mandated by statute; (e) When the written materials consist of a written settlementagreement or other agreement signed by the parties resulting from amediation proceeding; (f) When those communications or written materials pertain solelyto administrative matters incidental to the mediation proceeding,including the agreement to mediate; or (g) In a subsequent action between the mediator and a party to themediation arising out of the mediation. (2) When there is a court order, a written agreement to mediate, orwhen mediation is mandated under RCW 7.70.100, as described insubsection (1) of this section, the mediator or a representative of amediation organization shall not testify in any judicial oradministrative proceeding unless: (a) All parties to the mediation and the mediator agree in writing;or (b) In an action described in subsection (1)(g) of this section. (3) Beginning on January 1, 2006, this section governs onlymediations pursuant to a referral or an agreement made before January1, 2006. Mediations pursuant to a referral or an agreement made on orafter January 1, 2006, are governed by chapter 7. RCW (sections 1through 12 and 20 through 23 of this act).Sec. RCW 5.60.072 and 1991 c 321 s 2 are each amended to readas follows: Notwithstanding the provisions of RCW 5.60.070 and chapter 7. RCW(sections 1 through 12 and 20 through 23 of this act), when any partyparticipates in mediation conducted by a state or federal agency underthe provisions of a collective bargaining law or similar statute, theagency's rules govern questions of privilege and confidentiality.Sec. RCW 7.75.050 and 1984 c 258 s 505 are each amended toread as follows: Regardless of any provision to the contrary in chapter 42.17 RCW, 17 all memoranda, work notes or products, or case files of centersestablished under this chapter are confidential and privileged and arenot subject to disclosure in any judicial or administrative proceedingunless the court or administrative tribunal determines that thematerials were submitted by a participant to the center for the purposeof avoiding discovery of the material in a subsequent proceeding.((Any communication relating to the subject matter of the resolutionmade during the resolution process by any participant, mediator, or anyother person is a privileged communication and is not subject todisclosure in any judicial or administrative proceeding unless allparties to the communication waive the privilege. The foregoingprivilege and limitation on evidentiary use does not apply to anycommunication of a threat that injury or damage may be inflicted on anyperson or on the property of a party to the dispute, to the extent thecommunication may be relevant evidence in a criminal matter.)) In allother respects, chapter 7. RCW, (sections 1 through 12 and 20 through23 of this act), shall govern the privilege and confidentiality to beaccorded to communications made in conjunction with a mediationconducted by a dispute resolution center established under thischapter.Sec. RCW 26.09.015 and 1991 c 367 s 2 are each amended to readas follows: (1) In any proceeding under this chapter, the matter may be set formediation of the contested issues before or concurrent with the settingof the matter for hearing. The purpose of the mediation proceedingshall be to reduce acrimony which may exist between the parties and todevelop an agreement assuring the child's close and continuing contactwith both parents after the marriage is dissolved. The mediator shalluse his or her best efforts to effect a settlement of the dispute. (2) Each superior court may make available a mediator. Themediator may be a member of the professional staff of a family court ormental health services agency, or may be any other person or agencydesignated by the court. In order to provide mediation services, thecourt is not required to institute a family court. (3)(a) Mediation proceedings under this chapter shall be ((held inprivate and shall be confidential. The mediator shall not testify asto any aspect of the mediation proceedings. This subsection shall not 18 apply to postdecree mediation required pursuant to a parenting plan))governed in all respects by chapter 7. RCW (sections 1 through 12 and20 through 23 of this act), except as follows: (i) Mediation communications in postdecree mediations mandated bya parenting plan are admissible in subsequent proceedings for thelimited purpose of proving: (A) Abuse, neglect, abandonment, exploitation, or unlawfulharassment as defined in RCW 9A.46.020(1), of a child; (B) Abuse or unlawful harassment as defined in RCW 9A.46.020(1), ofa family or household member as defined in RCW 26.50.010(2); or (C) That a parent used or frustrated the dispute resolution processwithout good reason for purposes of RCW 26.09.184(3)(d). (ii) If a postdecree mediationarbitration proceeding is requiredpursuant to a parenting plan and the same person acts as both mediatorand arbitrator, mediation communications in the mediation phase of sucha proceeding may be admitted during the arbitration phase, and shall beadmissible in the judicial review of such a proceeding under RCW26.09.184(3)(e) to the extent necessary for such review to beeffective. (b) None of the exceptions under (a)(i) and (ii) of this subsectionshall subject a mediator to compulsory process to testify except bycourt order for good cause shown, taking into consideration the needfor the mediator's testimony and the interest in the mediatormaintaining an appearance of impartiality. If a mediationcommunication is not privileged under (a)(i) of this subsection or thatportion of (a)(ii) of this subsection pertaining to judicial review,only the portion of the communication necessary for the application ofthe exception may be admitted, and such admission of evidence shall notrender any other mediation communication discoverable or admissibleexcept as may be provided in chapter 7. RCW (sections 1 through 12and 20 through 23 of this act). (4) The mediator shall assess the needs and interests of the childor children involved in the controversy and may interview the child orchildren if the mediator deems such interview appropriate or necessary. (5) Any agreement reached by the parties as a result of mediationshall be reported to the court and to counsel for the parties by themediator on the day set for mediation or any time thereafter designatedby the court. 19 Sec. RCW 35.63.260 and 1998 c 119 s 1 are each amended to readas follows: (1) Prior to filing an appeal of a final decision by a hearingexaminer involving a conditional or special use permit applicationrequested by a party that is licensed or certified by the department ofsocial and health services or the department of corrections, theaggrieved party must, within five days after the final decision,initiate formal mediation procedures in an attempt to resolve theparties' differences. If, after initial evaluation of the dispute, theparties agree to proceed with a mediation, the mediation shall beconducted by a trained mediator selected by agreement of the parties.The agreement to mediate shall be in writing and subject to ((RCW5.60.070)) chapter 7. RCW (sections 1 through 12 and 20 through 23 ofthis act. If the parties are unable to agree on a mediator, each partyshall nominate a mediator and the mediator shall be selected by lotfrom among the nominees. The mediator must be selected within fivedays after formal mediation procedures are initiated. The mediationprocess must be completed within fourteen days from the time themediator is selected except that the mediation process may extendbeyond fourteen days by agreement of the parties. The mediator shall,within the fourteenday period or within the extension if an extensionis agreed to, provide the parties with a written summary of the issuesand any agreements reached. If the parties agree, the mediation reportshall be made available to the governing jurisdiction. The cost of themediation shall be shared by the parties. (2) Any time limits for filing of appeals are tolled during thependency of the mediation process. (3) As used in this section, "party" does not include county, city,or town.Sec. RCW 48.43.055 and 2002 c 300 s 6 are each amended to readas follows: Each health carrier as defined under RCW 48.43.005 shall file withthe commissioner its procedures for review and adjudication ofcomplaints initiated by health care providers. Procedures filed underthis section shall provide a fair review for consideration ofcomplaints. Every health carrier shall provide reasonable meansallowing any health care provider aggrieved by actions of the health 20 carrier to be heard after submitting a written request for review. Ifthe health carrier fails to grant or reject a request within thirtydays after it is made, the complaining health care provider may proceedas if the complaint had been rejected. A complaint that has beenrejected by the health carrier may be submitted to nonbindingmediation. Mediation shall be conducted under ((mediation rulessimilar to those of the American arbitration association, the centerfor public resources, the judicial arbitration and mediation service,RCW 7.70.100)) chapter 7. RCW (sections 1 through 12 and 20 through23 of this act, or any other rules of mediation agreed to by theparties. This section is solely for resolution of provider complaints.Complaints by, or on behalf of, a covered person are subject to thegrievance processes in RCW 48.43.530.NEW SECTION.Sec. CAPTIONS NOT LAW. Captions used in thisact are not any part of the law.NEW SECTION.Sec. SEVERABILITY CLAUSE. If any provision ofthis act or its application to any person or circumstance is heldinvalid, the remainder of the act or the application of the provisionto other persons or circumstances is not affected.NEW SECTION.Sec. APPLICATION TO EXISTING AGREEMENTS ORREFERRALS. (1) This chapter governs a mediation pursuant to a referralor an agreement to mediate made on or after January 1, 2006. (2) If all parties agree in a signed record or a record ofproceeding reflects such an agreement by all parties, then this chapter governs a mediation pursuant to a referral or an agreement tomediate whenever made.NEW SECTION.Sec. EFFECTIVE DATE. This act takes effectJanuary 1, 2006.NEW SECTION.Sec. Sections 1 through 12 and 20 through 23 ofthis act constitute a new chapter in Title 7 RCW. 21 SSB 5173S AMD17By Senators Kline, JohnsonADOPTED 03/02/2005 On page 1, line 1 of the title, after act; strike the remainderof the title and insert amending RCW 5.60.070, 5.60.072, 7.75.050,26.09.015, 35.63.260, and 48.43.055; reenacting and amending RCW42.17.310; adding a new chapter to Title 7 RCW; and providing aneffective date.--- END --- 22