Print Friendly SENATE BILL NO. 1261
– Uniform mediation act
SENATE BILL NO. 1261
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S1261................................................by JUDICIARY AND RULES
UNIFORM MEDIATION ACT - Adds to existing law to provide a short title; to
define terms; to provide for a privilege against disclosure; to provide
exceptions to the privilege; to provide for prohibition on mediator
reports; to provide what a mediator may disclose; to provide for inquiry
and disclosure of a mediator's conflicts of interest; to provide who may
participate in a mediation; to provide for rescission of the waiver of
participation; to provide application of the Model Law on International
Commercial Conciliation; to provide for relation to the Electronic
Signatures in Global and National Commerce Act; and to provide for
uniformity of application and construction.
01/14 Senate intro - 1st rdg - to printing
01/15 Rpt prt - to Jud
01/28 Rpt out - rec d/p - to 2nd rdg
01/29 2nd rdg - to 3rd rdg
01/31 3rd rdg - PASSED - 34-0-1
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Geddes, Goedde,
Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
Lodge, Malepeai(Sagness), McGee, McKague, McKenzie, Pearce,
Richardson, Schroeder, Siddoway, Stegner, Stennett(Thorson), Werk
NAYS -- None
Absent and excused -- Gannon
Floor Sponsor - Davis
Title apvd - to House
02/01 House intro - 1st rdg - to Jud
02/14 Rpt out - rec d/p - to 2nd rdg
02/15 2nd rdg - to 3rd rdg
02/19 3rd rdg - PASSED - 68-1-1
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
Block, Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon,
Chavez, Chew, Clark, Collins, Crane, Durst, Eskridge, Hagedorn, Hart,
Henbest(Burgoyne), Henderson, Jaquet, Killen, King, Kren, Labrador,
Lake, LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin,
Mortimer, Moyle, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence,
Raybould, Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer,
Shepherd(02), Shepherd(08), Shirley, Shively, Smith(24),
Smith(30)(Stanek), Snodgrass, Stevenson, Thayn, Thomas, Trail, Vander
Woude, Wills, Wood(27), Wood(35)
NAYS -- Harwood
Absent and excused -- Mr. Speaker
Floor Sponsor - LeFavour
Title apvd - to Senate
02/20 To enrol
02/21 Rpt enrol - Pres signed
02/22 Sp signed
02/25 To Governor
02/26 Governor signed
Session Law Chapter 35
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature Second Regular Session - 2008
IN THE SENATE
SENATE BILL NO. 1261
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO MEDIATION; AMENDING TITLE 9, IDAHO CODE, BY THE ADDITION OF A NEW
3 CHAPTER 8, TITLE 9, IDAHO CODE, TO PROVIDE A SHORT TITLE, TO DEFINE TERMS,
4 TO PROVIDE FOR THE SCOPE OF THE CHAPTER, TO PROVIDE FOR A PRIVILEGE
5 AGAINST DISCLOSURE, TO PROVIDE FOR A LIMITATION OF THE PRIVILEGE, TO PRO-
6 VIDE FOR THE WAIVER AND PRECLUSION OF THE PRIVILEGE, TO PROVIDE FOR EXCEP-
7 TIONS TO THE PRIVILEGE, TO PROVIDE FOR PROHIBITION ON MEDIATOR REPORTS, TO
8 PROVIDE WHAT A MEDIATOR MAY DISCLOSE, TO PROVIDE A PROHIBITION ON USE OF
9 IMPROPERLY DISCLOSED COMMUNICATIONS REGARDING A MEDIATION, TO PROVIDE FOR
10 CONFIDENTIALITY, TO PROVIDE FOR INQUIRY AND DISCLOSURE OF A MEDIATOR'S
11 CONFLICTS OF INTEREST, TO PROVIDE CONSEQUENCES FOR NONDISCLOSURE, TO PRO-
12 VIDE NO SPECIAL QUALIFICATIONS FOR A MEDIATOR, TO PROVIDE FOR WHO MAY PAR-
13 TICIPATE IN A MEDIATION AND FOR RESCISSION OF WAIVER OF PARTICIPATION, TO
14 DEFINE A TERM, TO PROVIDE FOR APPLICATION OF THE MODEL LAW ON INTERNA-
15 TIONAL COMMERCIAL CONCILIATION, TO PROVIDE FOR RELATION TO THE ELECTRONIC
16 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, TO PROVIDE FOR UNIFORMITY
17 OF APPLICATION AND CONSTRUCTION, TO PROVIDE APPLICATION TO EXISTING AGREE-
18 MENTS OR REFERRALS; AND PROVIDING FOR SEVERABILITY.
19 Be It Enacted by the Legislature of the State of Idaho:
20 SECTION 1. That Title 9, Idaho Code, be, and the same is hereby amended
21 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
22 ter 8, Title 9, Idaho Code, and to read as follows:
23 CHAPTER 8
24 UNIFORM MEDIATION ACT
25 9-801. SHORT TITLE. This chapter may be cited as the "Uniform Mediation
27 9-802. DEFINITIONS. In this chapter:
28 (1) "Mediation" means a process in which a mediator facilitates communi-
29 cation and negotiation between parties to assist them in reaching a voluntary
30 agreement regarding their dispute.
31 (2) "Mediation communication" means a statement, whether oral or in a
32 record or verbal or nonverbal, that occurs during a mediation or is made for
33 purposes of considering, conducting, participating in, initiating, continuing
34 or reconvening a mediation or retaining a mediator.
35 (3) "Mediation party" means a person that participates in a mediation and
36 whose agreement is necessary to resolve the dispute.
37 (4) "Mediator" means an individual who conducts a mediation.
38 (5) "Nonparty participant" means a person, other than a party or media-
39 tor, that participates in a mediation.
40 (6) "Person" means an individual, corporation, business trust, estate,
41 trust, partnership, limited liability company, association, joint venture,
1 government; governmental subdivision, agency, or instrumentality; public cor-
2 poration; or any other legal or commercial entity.
3 (7) "Proceeding" means:
4 (a) A judicial, administrative, arbitral or other adjudicative process,
5 including related prehearing and posthearing motions, conferences and dis-
6 covery; or
7 (b) A legislative hearing or similar process.
8 (8) "Record" means information that is inscribed on a tangible medium or
9 that is stored in an electronic or other medium and is retrievable in
10 perceivable form.
11 (9) "Sign" means:
12 (a) To execute or adopt a tangible symbol with the present intent to
13 authenticate a record;
14 (b) To attach or logically associate an electronic symbol, sound or proc-
15 ess to or with a record with the present intent to authenticate a record;
17 (c) To assent on a stenographic record with the present intent to authen-
18 ticate a record.
19 9-803. SCOPE. (1) Except as otherwise provided in subsection (2) or (3)
20 of this section, this chapter applies to a mediation in which:
21 (a) The mediation parties are required to mediate by statute or court or
22 administrative agency rule or referred to mediation by a court, adminis-
23 trative agency or arbitrator;
24 (b) The mediation parties and the mediator agree to mediate in a record
25 that demonstrates an expectation that mediation communications will be
26 privileged against disclosure; or
27 (c) The mediation parties use as a mediator an individual who holds him-
28 self or herself out as a mediator or the mediation is provided by a person
29 that holds itself out as providing mediation.
30 (2) This chapter does not apply to a mediation:
31 (a) Relating to the establishment, negotiation, administration or termi-
32 nation of a collective bargaining relationship;
33 (b) Relating to a dispute that is pending under or is part of the proc-
34 esses established by a collective bargaining agreement, except that the
35 chapter applies to a mediation arising out of a dispute that has been
36 filed with an administrative agency or court;
37 (c) Conducted by a judge who might make a ruling on the case; or
38 (d) Conducted under the auspices of:
39 (i) A primary or secondary school if all the parties are students,
41 (ii) A correctional institution for youth if all the parties are
42 residents of that institution.
43 (3) If the parties agree in advance in a signed record, or a record of
44 proceeding reflects agreement by the parties, that all or part of a mediation
45 is not privileged, the privileges under sections 9-804 through 9-806, Idaho
46 Code, do not apply to the mediation or part agreed upon. However, sections
47 9-804 through 9-806, Idaho Code, apply to a mediation communication made by a
48 person that has not received actual notice of the agreement before the commu-
49 nication is made.
50 9-804. PRIVILEGE AGAINST DISCLOSURE -- ADMISSIBILITY -- DISCOVERY. (1)
51 Except as otherwise provided in section 9-806, Idaho Code, a mediation commu-
52 nication is privileged as provided in subsection (2) of this section and is
53 not subject to discovery or admissible in evidence in a proceeding unless
1 waived or precluded as provided by section 9-805, Idaho Code.
2 (2) In a proceeding, the following privileges apply:
3 (a) A mediation party may refuse to disclose, and may prevent any other
4 person from disclosing, a mediation communication.
5 (b) A mediator may refuse to disclose a mediation communication, and may
6 prevent any other person from disclosing a mediation communication of the
8 (c) A nonparty participant may refuse to disclose, and may prevent any
9 other person from disclosing, a mediation communication of the nonparty
11 (3) Evidence or information that is otherwise admissible or subject to
12 discovery does not become inadmissible or protected from discovery solely by
13 reason of its disclosure or use in a mediation.
14 9-805. WAIVER AND PRECLUSION OF PRIVILEGE. (1) A privilege under section
15 9-804, Idaho Code, may be waived in a record or orally during a proceeding if
16 it is expressly waived by all parties to the mediation and:
17 (a) In the case of the privilege of a mediator, it is expressly waived by
18 the mediator; and
19 (b) In the case of the privilege of a nonparty participant, it is
20 expressly waived by the nonparty participant.
21 (2) A person that discloses or makes a representation about a mediation
22 communication which prejudices another person in a proceeding is precluded
23 from asserting a privilege under section 9-804, Idaho Code, but only to the
24 extent necessary for the person prejudiced to respond to the representation or
26 (3) A person that intentionally uses a mediation to plan, attempt to com-
27 mit or commit a crime or to conceal an ongoing crime or ongoing criminal
28 activity is precluded from asserting a privilege under section 9-804, Idaho
30 9-806. EXCEPTIONS TO PRIVILEGE. (1) There is no privilege under section
31 9-804, Idaho Code, for a mediation communication that is:
32 (a) In an agreement evidenced by a record signed by all parties to the
34 (b) Available to the public under sections 9-337 through 9-347, Idaho
35 Code, or made during a session of a mediation which is open, or is
36 required by law to be open, to the public;
37 (c) A threat or statement of a plan to inflict bodily injury or commit a
38 crime of violence;
39 (d) Intentionally used to plan a crime, attempt to commit or commit a
40 crime or to conceal an ongoing crime or ongoing criminal activity;
41 (e) Sought or offered to prove or disprove a claim or complaint of pro-
42 fessional misconduct or malpractice filed against a mediator;
43 (f) Except as otherwise provided in subsection (3) of this section,
44 sought or offered to prove or disprove a claim or complaint of profes-
45 sional misconduct or malpractice filed against a mediation party, nonparty
46 participant or representative of a party based on conduct occurring during
47 a mediation; or
48 (g) Sought or offered to prove or disprove abuse, neglect, abandonment or
49 exploitation in a proceeding in which a child or adult protective services
50 agency is a party, unless the public agency participates in the mediation.
51 (2) There is no privilege under section 9-804, Idaho Code, if a court,
52 administrative agency or arbitrator finds, after a hearing in camera, that the
53 party seeking discovery or the proponent of the evidence has shown that the
1 evidence is not otherwise available, that there is a need for the evidence
2 that substantially outweighs the interest in protecting confidentiality, and
3 that the mediation communication is sought or offered in:
4 (a) A court proceeding involving a felony or misdemeanor; or
5 (b) Except as otherwise provided in subsection (3) of this section, a
6 proceeding to prove a claim to rescind or reform or a defense to avoid
7 liability on a contract arising out of the mediation.
8 (3) A mediator may not be compelled to provide evidence of a mediation
9 communication referred to in subsection (1)(f) or (2)(b) of this section.
10 (4) If a mediation communication is not privileged under subsection (1)
11 or (2) of this section, only the portion of the communication necessary for
12 the application of the exception from nondisclosure may be admitted. Admission
13 of evidence under subsection (1) or (2) of this section does not render the
14 evidence, or any other mediation communication, discoverable or admissible for
15 any other purpose.
16 9-807. PROHIBITED MEDIATOR REPORTS. (1) Except as otherwise provided in
17 subsection (2) of this section, a mediator may not make a report, assessment,
18 evaluation, recommendation, finding or other communication regarding a media-
19 tion to a court, administrative agency or other authority that may make a rul-
20 ing on the dispute that is the subject of the mediation.
21 (2) A mediator may disclose:
22 (a) Whether the mediation occurred or has terminated, whether a settle-
23 ment was reached, and attendance;
24 (b) A mediation communication as permitted under section 9-806, Idaho
26 (c) A mediation communication evidencing abuse, neglect, abandonment or
27 exploitation of an individual to a public agency responsible for protect-
28 ing individuals against such mistreatment; or
29 (d) In mediation governed by Idaho rule of civil procedure 16(j), infor-
30 mation permitted under Idaho rule of civil procedure 16(j).
31 (3) A communication made in violation of subsection (1) of this section
32 may not be considered by a court, administrative agency or arbitrator.
33 9-808. CONFIDENTIALITY. Unless subject to sections 9-337 through 9-347 or
34 67-2340 through 67-2347, Idaho Code, mediation communications are confidential
35 to the extent agreed by the parties or provided by other law or rule of this
37 9-809. MEDIATOR'S DISCLOSURE OF CONFLICTS OF INTEREST -- BACKGROUND. (1)
38 Before accepting a mediation, an individual who is requested to serve as a
39 mediator shall:
40 (a) Make an inquiry that is reasonable under the circumstances to deter-
41 mine whether there are any known facts that a reasonable individual would
42 consider likely to affect or create the appearance of affecting the impar-
43 tiality of the mediator, including a financial or personal interest in the
44 outcome of the mediation and an existing or past relationship with a medi-
45 ation party or foreseeable participant in the mediation; and
46 (b) Disclose any such known fact to the mediation parties as soon as is
47 practical before accepting a mediation.
48 (2) If a mediator learns any fact described in subsection (1)(a) of this
49 section after accepting a mediation, the mediator shall disclose it as soon as
50 is practicable.
51 (3) At the request of a mediation party, an individual who is requested
52 to serve as a mediator shall disclose the mediator's qualifications to mediate
1 a dispute.
2 (4) A person that violates subsection (1) or (2) of this section is pre-
3 cluded by the violation from asserting a privilege under section 9-804, Idaho
5 (5) Subsections (1), (2) and (3) of this section do not apply to an indi-
6 vidual acting as a judge.
7 (6) This chapter does not require that a mediator have a special qualifi-
8 cation by background or profession.
9 (7) A mediator must be impartial unless, after disclosure of the facts
10 required in subsections (1) and (2) of this section to be disclosed, the par-
11 ties agree otherwise.
12 9-810. PARTICIPATION IN MEDIATION. Unless otherwise provided by court
13 rule or order, an attorney or other individual designated by a party may
14 accompany the party to and participate in a mediation. A waiver of participa-
15 tion given before the mediation may be rescinded.
16 9-811. INTERNATIONAL COMMERCIAL MEDIATION. (1) In this section, "model
17 law" means the model law on international commercial conciliation adopted by
18 the United Nations commission on international trade law on June 28, 2002, and
19 recommended by the United Nations general assembly in a resolution
20 (A/RES/57/18) dated November 19, 2002, and "international commercial media-
21 tion" means an international commercial conciliation as defined in article 1
22 of the model law.
23 (2) Except as otherwise provided in subsections (3) and (4) of this sec-
24 tion, if a mediation is an international commercial mediation, the mediation
25 is governed by the model law.
26 (3) Unless the parties agree in accordance with section 9-803(3), Idaho
27 Code, that all or part of an international commercial mediation is not privi-
28 leged, sections 9-804, 9-805 and 9-806, Idaho Code, and any applicable defini-
29 tions in section 9-802, Idaho Code, also apply to the mediation and nothing in
30 article 10 of the model law derogates from sections 9-804, 9-805 and 9-806,
31 Idaho Code.
32 (4) If the parties to an international commercial mediation agree under
33 article 1, subsection 7., of the model law that the model law does not apply,
34 this chapter applies.
35 9-812. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE
36 ACT. This chapter modifies, limits or supersedes the federal electronic signa-
37 tures in global and national commerce act, 15 U.S.C. section 7001 et seq., but
38 this chapter does not modify, limit or supersede section 101(c) of that act or
39 authorize electronic delivery of any of the notices described in section
40 103(b) of that act.
41 9-813. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and con-
42 struing this chapter, consideration should be given to the need to promote
43 uniformity of the law with respect to its subject matter among states that
44 enact it.
45 9-814. APPLICATION TO EXISTING AGREEMENTS OR REFERRALS. This chapter gov-
46 erns a mediation occurring after the effective date of this chapter pursuant
47 to a referral or an agreement to mediate, whenever made.
48 SECTION 2. SEVERABILITY. The provisions of this act are hereby declared
49 to be severable and if any provision of this act or the application of such
1 provision to any person or circumstance is declared invalid for any reason,
2 such declaration shall not affect the validity of the remaining portions of
3 this act.
STATEMENT OF PURPOSE
The purpose of the Uniform Mediation Act is to provide
parties involved in the mediation of disputes uniform rules
intended to facilitate amicable resolution of disputes by
promoting candor of the parties and confidentiality of
communications made incident to mediation. The Uniform Mediation
Act will provide rules for non-judicial mediations that are
uniform with recent rules adopted by the Idaho Supreme Court.
There will be no impact on the state's general fund.
Name: Rex Blackburn, Uniform Law Commissioner
Dale G. Higer, Uniform Law Commissioner
STATEMENT OF PURPOSE/FISCAL NOTE S 1261