SENATE BILL REPORT

SB 5079

BYSenators Talmadge, Nelson and Moore

Restricting admissibility of evidence arising out of mediations.

Senate Committee on Judiciary

Senate Hearing Date(s):January 29, 1987; February 5, 1987

Majority Report:  That Substitute Senate Bill No. 5079 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Talmadge, Chairman; Halsan, Vice Chairman; Bottiger, McCaslin, Nelson, Newhouse.

Senate Staff:Lidia Mori (786-7461)

                  February 6, 1987

AS REPORTED BY COMMITTEE ON JUDICIARY, FEBRUARY 5, 1987

BACKGROUND:

Mediation involves representatives from each side of a dispute meeting together with an impartial and trained mediator to attempt to reach a settlement.  There exists no clear legal authority in Washington mandating the confidentiality of documents and statements made in the course of mediation.  In 1986, California amended its evidence code to restrict the admissibility into evidence of any document prepared or anything said in the course of a mediation.  It is suggested that such statutory protection is necessary in Washington in order to further the effectiveness of dispute resolution through mediation.

SUMMARY:

Anything said during the course of a mediation shall not be compelled to be disclosed in any civil action and such statements or admissions will not be admissible into evidence.  Documents prepared in the course of mediation will also not be admissible into evidence and disclosure of the documents will not be compelled through testimony.  In order for this protection against disclosure of documents and statements to be effective, the participants in a mediation must agree to it in writing.  If the persons who participate in a mediation agree to the disclosure of either a statement or a document then its admissibility into evidence is not restricted. 

EFFECT OF PROPOSED SUBSTITUTE:

The limitation on use of evidence pertaining to statements made during the course of a mediation does not extend to threats of injury or damage to a person or property of a party to the mediation if it is relevant evidence in a criminal matter.

If a court determines at a subsequent proceeding that materials were submitted by a participant to a mediation for the purpose of avoiding discovery, those materials will not be protected by the limitation on use of evidence.

Fiscal Note:      requested

Senate Committee - Testified: Neal Blacker, NW Regional Director of American Arbitration Association; James Metz, Executive Director of Seattle King County Mediation Services; Barbara Wright, Washington Arbitration Services