AN ACT RELATING TO THE UNIFORM MEDIATION ACT
The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 12 V.S.A. chapter 194 is added to read:
CHAPTER 194. UNIFORM MEDIATION ACT
§ 5711. SHORT TITLE
This chapter may be cited as the Vermont Uniform Mediation Act.
§ 5712. UNIFORMITY OF APPLICATION
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 5713. DEFINITIONS
As used in this chapter:
(1) “Court” means a court of competent jurisdiction in Vermont.
(2) “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
(3) “Mediation communication” means a statement, whether oral, in a record, verbal, or nonverbal, that is made or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
(4) “Mediator” means an individual who conducts a mediation.
(5) “Nonparty participant” means a person, other than a party or mediator, that participates in a mediation.
(6) “Party” means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.
(7) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, instrumentality, public corporation, or any other legal or commercial entity.
(8) “Proceeding” means a judicial, administrative, arbitral, or other adjudicative process, including related prehearing and posthearing motions, conferences, and discovery; or a legislative hearing or similar process.
(9) “Record,” except in the phrase “record of proceeding,” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium, and is retrievable in perceivable form.
(10) “Sign” includes:
(A) executing or adopting a tangible symbol with the present intent to authenticate a record;
(B) attaching or logically associating an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.
§ 5714. SCOPE
(a) Except as otherwise provided in subsection (b) or (c) of this section, this chapter applies to a mediation in which:
(1) the parties are required to mediate by statute or court or administrative agency rule, or referred to mediation by a court, administrative agency, or arbitrator;
(2) the parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or
(3) the parties utilize as a mediator a person that holds himself or herself out as providing mediation services.
(b) This chapter does not apply to a mediation:
(1) relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;
(2) relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that this chapter applies to a mediation arising out of such a dispute that has been filed with a court or with a public agency other than the federal mediation and conciliation service or the Vermont labor relations board;
(3) conducted under the auspices of a primary or secondary school where all the parties are students, or under the auspices of a correctional institution for youths where all the parties are residents of that institution; or
(4) conducted by a judge who might make a ruling on the case.
(c) If the parties agree in advance that all or part of a mediation is not privileged, the privileges under sections 5715 through 5717 of this title do not apply to the mediation or part agreed upon. The agreement must be in a signed record or reflected in the record of a proceeding. However, sections 5715 through 5717 of this title apply to a mediation communication made by a person who has not received actual notice of the agreement before the communication is made.
§ 5715. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY;
(a) A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding.
(b) In a proceeding, the following privileges apply:
(1) A party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2) A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator.
(3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
§ 5716. WAIVER AND PRECLUSION OF PRIVILEGE
(a) A privilege under section 5715 of this title may be waived in a record or orally during a proceeding, if it is expressly waived by all parties to the mediation, and:
(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
(b) A person who discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 5715 of this title to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(c) A person who intentionally uses a mediation to plan, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity, may not assert a privilege under section 5715 of this title.
§ 5717. EXCEPTIONS TO PRIVILEGE
(a) There is no privilege under section 5715 of this title for a mediation communication that is:
(1) in an agreement evidenced by a record signed by all parties to the agreement;
(2) available to the public under subchapter 3 of chapter 5 of Title 1, or made during a session of a mediation which is open, or is required by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(4) intentionally used to plan, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity;
(5) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, but this exception does not apply where a child or adult protection case is referred by a court to mediation and a public agency participates in the mediation;
(6) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or
(7) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation, except as otherwise provided in subsection (c) of this section.
(b) There is no privilege under section 5715 of this title if a court, administrative agency, or arbitration panel finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in:
(1) a criminal proceeding in district court; or
(2) a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, a contract arising out of the mediation, except as otherwise provided in subsection (c) of this section.
(c) A mediator may not be compelled to provide evidence of a mediation communication referenced in subdivision (a)(7) or (b)(2) of this section.
(d) If a mediation communication is not privileged under subsection (a) or (b) of this section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) of this section does not render the evidence or any other mediation communication discoverable or admissible for any other purpose.
§ 5718. MEDIATOR REPORT; DISCLOSURE; BACKGROUND
(a) A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, but a mediator may disclose:
(1) whether the case is not appropriate for mediation, whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;
(2) a mediation communication as permitted under section 5717 of this title; or
(3) a mediation communication evidencing abuse, neglect, abandonment, or exploitation of a child or vulnerable adult to a public agency responsible for protecting such individuals against such mistreatment.
(b) A communication made in violation of subsection (a) of this section may not be considered by a court or other tribunal.
(c) Subsections (d), (e), (f), and (g) of this section do not apply to an individual acting as a judge.
(d) Before accepting a mediation, an individual who is requested to serve as a mediator shall:
(1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a party or foreseeable participant in the mediation; and
(2) disclose as soon as is practicable before accepting a mediation any such fact known.
(e) If a mediator learns any fact described in subdivision (d)(1) of this section after accepting a mediation, the mediator shall disclose as soon as is practicable.
(f) A mediator shall be impartial, unless, after disclosure of the facts required in subsections (d) and (e) of this section, the parties agree otherwise.
(g) A person who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute if requested to do so by a party.
(h) A person who violates subsection (d), (e), or (f) of this section is precluded from asserting a privilege under section 5715 of this title.
(i) Unless otherwise required by law, no special qualification by background or profession is necessary to be a mediator under this chapter.
§ 5719. NONPARTY PARTICIPATION IN MEDIATION
An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of participation given before the mediation may be rescinded.
§ 5720. CONFIDENTIALITY
Unless subject to subchapter 2 or 3 of chapter 5 of Title 1, mediation communications are confidential to the extent agreed to by the parties or provided by law.
§ 5721. RELATION TO ELECTRONIC SIGNATURE IN GLOBAL AND
NATIONAL COMMERCE ACT
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (Act), 15 U.S.C. § 7001(c), except that nothing in this chapter modifies, limits, or supersedes Section 101(c) of the Act, nor authorizes electronic delivery of any of the notices described in Section 103(b) of the Act.
§ 5722. SEVERABILITY CLAUSE
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, the provisions of this chapter are severable.
§ 5723. APPLICATION TO EXISTING AGREEMENTS OR REFERRALS
(a) This chapter governs a mediation pursuant to a referral or an agreement to mediate made on or after July 1, 2006.
The Vermont General Assembly
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