Download Zipped Introduced WP 8.0 HB0329.ZIP 18,579 Bytes
[Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 329
1
CHILD WELFARE MEDIATION
2
2000 GENERAL SESSION
3
STATE OF UTAH
4
Sponsor: Greg J. Curtis
5
AN ACT RELATING TO THE JUDICIARY; ESTABLISHING MEDIATION FOR ABUSE,
6
NEGLECT, AND DEPENDENCY PETITIONS AND TERMINATION OF PARENTAL
7
RIGHTS PETITIONS; ALLOWING THE JUDICIAL COUNCIL TO ESTABLISH
8
PERMANENT ADR PROGRAMS BY RULE; ALLOWING AN ADR PROVIDER TO BE AN
9
EMPLOYEE OF THE COURT; PROVIDING THAT ADR PROCEDURES MAY BE
10
MANDATED BY THE COURT; AMENDING THE DEFINITION OF "CIVIL ACTION"; AND
11
PROVIDING AN EFFECTIVE DATE.
12
This act affects sections of Utah Code Annotated 1953 as follows:
13
AMENDS:
14
78-3a-109, as enacted by Chapter 365, Laws of Utah 1997
15
78-31b-2, as last amended by Chapter 20, Laws of Utah 1995
16
78-31b-3, as repealed and reenacted by Chapter 228, Laws of Utah 1994
17
78-31b-4, as repealed and reenacted by Chapter 228, Laws of Utah 1994
18
78-31b-5, as repealed and reenacted by Chapter 228, Laws of Utah 1994
19
78-31b-7, as last amended by Chapter 68, Laws of Utah 1995
20
78-31b-8, as repealed and reenacted by Chapter 228, Laws of Utah 1994
21
Be it enacted by the Legislature of the state of Utah:
22
Section 1.
Section
78-3a-109
is amended to read:
23
78-3a-109. Title of petition and other court documents -- Form and contents of
24
petition -- Order for temporary custody -- Physical or psychological examination of minor,
25
parent, or guardian -- Dismissal of petition.
26
(1) The petition and all subsequent court documents in the proceeding shall be entitled:
27
"State of Utah, in the interest of...................., a person under 18 years of age (or a person
28
under 21 years of age)."
29
(2) The petition shall be verified and statements in the petition may be made upon
30
information and belief.
31
(3) The petition shall be written in simple and brief language and include the facts which
32
bring the minor within the jurisdiction of the court, as provided in Section
78-3a-104
.
33
(4) The petition shall further state:
34
(a) the name, age, and residence of the minor;
35
(b) the names and residences of the minor's parents;
36
(c) the name and residence of the guardian, if there is one;
37
(d) the name and address of the nearest known relative, if no parent or guardian is known;
38
and
39
(e) the name and residence of the person having physical custody of the minor. If any of
40
the facts required are not known by the petitioner, the petition shall so state.
41
(5) At any time after a petition is filed, the court may make an order providing for
42
temporary custody of the minor.
43
(6) The court may order that a minor concerning whom a petition has been filed shall be
44
examined by a physician, surgeon, psychiatrist, or psychologist and may place the minor in a
45
hospital or other facility for examination. After notice and a hearing set for the specific purpose,
46
the court may order a similar examination of a parent or guardian whose ability to care for a minor
47
is at issue, if the court finds from the evidence presented at the hearing that the parent's or
48
guardian's physical, mental, or emotional condition may be a factor in causing the neglect,
49
dependency, or delinquency of the minor.
50
(7) Pursuant to Rule 506(d)(3), Utah Rules of Evidence, examinations conducted pursuant
51
to Subsection (6) are not privileged communications, but are exempt from the general rule of
52
privilege.
53
(8) The court may dismiss a petition at any stage of the proceedings.
54
(9) If the petition is filed under Section
78-3a-305
or
78-3a-405
or if the matter is referred
55
to the court under Subsection
78-3a-105
(3)(b), the court may require the parties to participate in
56
mediation in accordance with Title 78, Chapter 31b, Alternative Dispute Resolution.
57
Section 2.
Section
78-31b-2
is amended to read:
58
78-31b-2. Definitions.
59
As used in this act:
60
(1) "ADR" means alternative dispute resolution and includes arbitration, mediation, and
61
other means of dispute resolution, other than court trial, authorized by the Judicial Council under
62
this chapter.
63
(2) "ADR organization" means an organization which provides training for ADR providers
64
or offers other ADR services.
65
(3) "ADR provider" means a neutral person who conducts an ADR procedure. An
66
arbitrator, mediator, and early neutral evaluator are ADR providers. An ADR provider may be an
67
employee of the court or an independent contractor.
68
(4) "Arbitration" means a private hearing before a neutral or panel of neutrals who hear
69
the evidence, consider the contentions of the parties, and enter a written award to resolve the issues
70
presented pursuant to Section
78-31b-6
.
71
(5) "Award" as used in connection with arbitration includes monetary or equitable relief
72
and may include damages, interest, costs, and attorneys' fees.
73
(6) "Civil action" means an action in which a party seeks monetary or equitable relief at
74
common law or pursuant to statute[, other than the prosecution of a minor for an act that would
75
constitute a crime if committed by an adult].
76
(7) "Early neutral evaluation" means a confidential meeting with a neutral expert to
77
identify the issues in a dispute, explore settlement, and assess the merits of the claims.
78
(8) "Mediation" means a private forum in which one or more impartial persons facilitate
79
communication between parties to a civil action to promote a mutually acceptable resolution or
80
settlement.
81
(9) "Summary jury trial" means a summary presentation of a case to a jury which results
82
in a nonbinding verdict.
83
Section 3.
Section
78-31b-3
is amended to read:
84
78-31b-3. Purpose and findings.
85
(1) The purpose of this act is to offer an alternative or supplement to the formal processes
86
associated with a court trial and to promote the efficient and effective operation of the courts of
87
this state by authorizing and encouraging the use of alternative methods of dispute resolution to
88
secure the just, speedy, and inexpensive determination of civil actions filed in the courts of this
89
state.
90
(2) The Legislature finds that:
91
(a) the use of alternative methods of dispute resolution authorized by this act will secure
92
the purposes of Article I, Section 11, Utah Constitution, by providing supplemental or
93
complementary means for the just, speedy, and inexpensive resolution of disputes;
94
(b) preservation of the confidentiality of ADR procedures will significantly aid the
95
successful resolution of civil actions in a just, speedy, and inexpensive manner;
96
(c) ADR procedures will reduce the need for judicial resources and the time and expense
97
of the parties; [and]
98
(d) mediation has, in pilot programs, resulted in the just and equitable settlement of
99
petitions for the protection of children under Section
78-3a-305
and petitions for the terminations
100
of parental rights under Section
78-3a-405
; and
101
[(d)] (e) the purpose of this act will be promoted by authorizing the Judicial Council to
102
establish rules [for the administration of an experimental program] to promote the use of ADR
103
procedures by the courts of this state as an alternative or supplement to court trial.
104
Section 4.
Section
78-31b-4
is amended to read:
105
78-31b-4. Dispute Resolution Programs -- Director -- Duties -- Report.
106
(1) Within the Administrative Office of the Courts, there shall be a director of Dispute
107
Resolution Programs, appointed by the state court administrator.
108
(2) The director shall be an employee of the Administrative Office of the Courts and shall
109
be responsible for the administration of all court-annexed Dispute Resolution Programs. The
110
director shall have duties, powers, and responsibilities as the Judicial Council may determine. The
111
qualifications for employment of the director shall be based on training and experience in the
112
management, principles, and purposes of alternative dispute resolution procedures.
113
(3) In order to implement the purposes of this act, the Administrative Office of the Courts
114
may employ or contract with ADR providers or ADR organizations on a case-by-case basis, on a
115
service basis, or on a program basis. ADR providers and organizations shall be subject to the rules
116
and fees set by the Judicial Council. The Administrative Office of the Courts shall establish
117
programs for [the] training [of] ADR providers and [the orientation of] orienting attorneys and
118
their clients to ADR programs and procedures.
119
(4) An ADR provider is [an independent contractor and shall be] immune from all liability
120
when conducting proceedings under the rules of the Judicial Council and the provisions of this act,
121
except for wrongful disclosure of confidential information, to the same extent as a judge of the
122
courts in this state.
123
(5) The director shall report annually to the Supreme Court, the Judicial Council, the
124
Judiciary Interim Committee, the governor, and the Utah State Bar on the operation of the Dispute
125
Resolution Programs.
126
(a) Copies of the report shall be available to the public at the Administrative Office of the
127
Courts.
128
(b) The report shall include:
129
(i) identification of participating judicial districts and the methods of alternative dispute
130
resolution that are available in those districts;
131
(ii) the number and types of disputes received;
132
(iii) the methods of alternative dispute resolution to which the disputes were referred;
133
(iv) the course of the referral;
134
(v) the status of cases referred to alternative dispute resolution or the disposition of these
135
disputes; and
136
(vi) any problems encountered in the administration of the program and the
137
recommendations of the director as to the continuation or modification of any program.
138
(c) Nothing may be included in a report which would impair the privacy or confidentiality
139
of any specific ADR proceeding.
140
Section 5.
Section
78-31b-5
is amended to read:
141
78-31b-5. Judicial Council rules for ADR procedures.
142
(1) To promote the use of ADR procedures, the Judicial Council may by rule establish
143
[rules for the administration of an] experimental [program for referral of civil cases to ADR
144
procedures. This program shall be] and permanent ADR programs administered by the
145
Administrative Office of the Courts under the supervision of the director of Dispute Resolution
146
Programs.
147
(2) The rules of the Judicial Council shall be based upon the purposes and provisions of
148
this act. Any procedural and evidentiary rules as the Supreme Court may adopt shall not impinge
149
on the constitutional rights of any parties.
150
(3) The rules of the Judicial Council shall include provisions:
151
(a) to orient parties and their counsel to the ADR program, ADR procedures, and the rules
152
of the Judicial Council;
153
(b) to [refer civil actions and categories] identify types of civil actions [to] that qualify for
154
ADR procedures;
155
(c) to refer to ADR procedures all or particular issues within a civil action;
156
(d) to protect persons not parties to the civil action whose rights may be affected in the
157
resolution of the dispute;
158
(e) to ensure that no party or its attorney is prejudiced for electing, in good faith, not to
159
participate in an optional ADR procedure;
160
(f) to exempt any case from the ADR program in which the objectives of ADR would not
161
be realized;
162
(g) to create timetables to ensure that the ADR procedure is instituted and completed
163
without undue delay or expense;
164
(h) to establish the qualifications of ADR providers for each form of ADR procedure
165
including that:
166
(i) an ADR provider may, but need not be, a certified ADR provider pursuant to Title 58,
167
Chapter 39a, Alternative Dispute Resolution Providers Certification Act; and
168
(ii) formal education in any particular field may not, by itself, be either a prerequisite or
169
sufficient qualification to serve as an ADR provider under the program authorized by this act;
170
(i) to govern the conduct of each type of ADR procedure, including the site at which the
171
procedure is conducted;
172
(j) to establish the means for the selection of an ADR provider for each form of ADR
173
procedure;
174
(k) to determine the powers, duties, and responsibilities of the ADR provider for each form
175
of ADR procedure;
176
(l) to establish a code of ethics applicable to ADR providers with means for its
177
enforcement;
178
(m) to protect and preserve the privacy and confidentiality of ADR procedures;
179
(n) to protect and preserve the privacy rights of the [parties] persons attending the ADR
180
procedures;
181
(o) to permit waiver of all or part of fees assessed for referral of a case to the ADR
182
program on a showing of impecuniosity or other compelling reason;
183
(p) to authorize imposition of sanctions for failure of counsel or parties to participate in
184
good faith in the ADR procedure assigned;
185
(q) to assess the fees to cover the cost of compensation for the services of the ADR
186
provider and reimbursement for the provider's allowable, out-of-pocket expenses and
187
disbursements; and
188
(r) to allow vacation of an award by a court as provided in Section
78-31a-14
.
189
(4) The Judicial Council may, from time to time, limit the application of its ADR rules to
190
particular judicial districts.
191
Section 6.
Section
78-31b-7
is amended to read:
192
78-31b-7. Minimum procedures for mediation.
193
(1) A judge or court commissioner may refer to mediation any case for which the Judicial
194
Council and Supreme Court have established a program or procedures. A party may file with the
195
court an objection to the referral which may be granted for good cause.
196
[(1)] (2) (a) Unless all parties and the neutral or neutrals agree[: (a)] only parties, their
197
representatives, and the neutral may attend the mediation sessions[;].
198
[(b) any recording of the proceedings may not be allowed;]
199
[(c) any notes of the proceedings maintained by the neutral may not be considered a record
200
and shall be destroyed by the neutral when a settlement is reached or the parties have abandoned
201
the settlement negotiations;]
202
[(d) any party, its representative, the neutral, or any other person who attends or
203
participates in the mediation proceeding may not disclose, or through any discovery or other
204
compulsory process, may not be required to disclose any oral or written communications prepared
205
for or expressed in the course of the mediation proceeding, including any memoranda, notes,
206
records, or work product of a mediator, any party, or its representative.]
207
[(2) Any information disclosed or obtained in violation of Subsection (1) may not be
208
admitted into evidence in any judicial proceeding between the same parties.]
209
(b) If the mediation session is pursuant to a referral under Subsection
78-3a-109
(9), the
210
ADR provider or ADR organization shall notify any person entitled to attend a juvenile court
211
hearing under Section
78-3a-314
. The ADR provider may notify any person whose rights may be
212
affected by the mediated agreement or who may be able to contribute to the agreement. A party
213
may request notice be provided to a person who is not a party.
214
(3) [Any] (a) Except as provided in Subsection (3)(b), any settlement agreement between
215
the parties as a result of mediation [or other ADR procedures] may be executed in writing, filed
216
with the clerk of the court, and enforceable as a judgment of the court[, or the parties may stipulate,
217
if appropriate, to dismissal of the action]. If the parties stipulate to dismiss the action, any
218
agreement to dismiss [need] shall not be filed with the court [and may not be part of the records
219
of the court].
220
(b) With regard to mediation affecting any petition filed under Section
78-3a-305
or
221
78-3a-405
:
222
(i) all settlement agreements and stipulations of the parties shall be filed with the court;
223
(ii) all timelines, requirements, and procedures described in Title 78, Chapter 3a, Parts 3
224
and 4, and in Title 62A, Chapter 4a, shall be complied with; and
225
(iii) the parties to the mediation may not agree to a result that could not have been ordered
226
by the court in accordance with the procedures and requirements of Title 78, Chapter 3a, Parts 3
227
and 4, and Title 62A, Chapter 4a.
228
Section 7.
Section
78-31b-8
is amended to read:
229
78-31b-8. Confidentiality.
230
[(1) From the date a case or any portion of it is referred to any ADR procedure, all time
231
requirements of the Utah Rules of Civil Procedure or applicable local rules are tolled unless the
232
court determines that any portion of the dispute not referred to ADR should proceed. The tolling
233
period shall end on the date the ADR provider files written notice with the court that the ADR
234
procedure has terminated or, if an arbitration award has been filed, the time for filing a demand
235
for trial de novo has expired.]
236
[(2) (a)] (1) [The purpose of the ADR program authorized by this act is to offer an
237
alternative or supplement to the formal processes and requirements associated with a court trial.]
238
ADR proceedings shall be conducted in a manner that encourages informal and confidential
239
exchange among [counsel, the parties, and the ADR provider] the persons present to facilitate
240
resolution of the dispute or a part of the dispute. ADR proceedings shall be closed[, unless the
241
court finds a strong countervailing interest against maintaining the confidentiality of the
242
proceedings in that particular case, or] unless the parties agree that the proceedings be open. ADR
243
proceedings shall not be recorded.
244
[(b)] (2) No evidence concerning the fact, conduct, or result of an ADR proceeding may
245
be subject to discovery or admissible at any subsequent [civil] trial of the same case or same issues
246
between the same parties [or subject to inspection by any person not a party to the ADR
247
proceeding, not an employee of the court, or not an employee of the Administrative Office of the
248
Courts, including:].
249
[(i) any written or oral admission or statement made by any party or counsel during the
250
ADR proceeding; or]
251
[(ii) any transcript or recording of any ADR hearing.]
252
(3) No party to the case may introduce as evidence information obtained during an ADR
253
proceeding unless the information was discovered from a source independent of the ADR
254
proceeding.
255
(4) Unless all parties and the neutral agree, no person attending an ADR proceeding,
256
including the ADR provider or ADR organization, may disclose or be required to disclose any
257
information obtained in the course of an ADR proceeding, including any memoranda, notes,
258
records, or work product.
259
[(c) An] (5) Except as provided, an ADR provider or ADR organization may not disclose
260
or discuss any information about [or related to] any ADR proceeding to anyone outside the
261
proceeding, including the judge or judges to whom the case may be assigned[, except:]. An ADR
262
provider or an ADR organization may communicate information about an ADR proceeding with
263
the director for the purposes of training, program management, or program evaluation and when
264
consulting with a peer. In making those communications, the ADR provider or ADR organization
265
shall render anonymous all identifying information.
266
[(i) in the instance of a dispute between a litigant and legal counsel concerning attorneys'
267
fees or claimed legal malpractice; and]
268
[(ii) where it is claimed a witness in an arbitration proceeding committed perjury.]
269
[(d) The ADR provider shall render anonymous all identifying information when materials
270
from any ADR proceeding are used for research, training, or statistical compilation. Mediators
271
shall keep confidential from all other parties any information obtained in individual caucuses,
272
unless the party to the caucus permits the disclosure.]
273
(6) Nothing in this section limits or affects the responsibility to report child abuse or
274
neglect in accordance with Section
62A-4a-403
.
275
[(e)] (7) No records of ADR proceedings under this act or under Title 78, Chapter 31a,
276
Utah Arbitration Act, shall be subject to Title 63, Chapter 2, Government Records Access and
277
Management Act, except settlement agreements filed with the court after conclusion of an ADR
278
proceeding or awards filed with the court after the period for filing a demand for trial de novo has
279
expired.
280
Section 8. Effective date.
281
This act takes effect on July 1, 2000.
Legislative Review Note
as of 2-9-00 1:15 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.