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S.B. 61
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill
on Wed, Feb 8, 2006 at 11:07 AM by smaeser. -->
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UNIFORM MEDIATION ACT
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2006 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Lyle W. Hillyard
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House Sponsor:
Lorie D. Fowlke
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LONG TITLE
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General Description:
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This bill enacts the Utah Uniform Mediation Act.
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Highlighted Provisions:
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This bill:
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. enacts the Utah Uniform Mediation Act;
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. provides definitions;
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. applies to most mediations;
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. sets waiver provisions for privileges and communications within mediation;
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. states mediation information is confidential and not admissible in court, and
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specifies exceptions; and
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. provides for mediator's disclosure of conflicts of interest.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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ENACTS:
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78-31c-101, Utah Code Annotated 1953
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78-31c-102, Utah Code Annotated 1953
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78-31c-103, Utah Code Annotated 1953
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78-31c-104, Utah Code Annotated 1953
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78-31c-105, Utah Code Annotated 1953
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78-31c-106, Utah Code Annotated 1953
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78-31c-107, Utah Code Annotated 1953
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78-31c-108, Utah Code Annotated 1953
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78-31c-109, Utah Code Annotated 1953
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78-31c-110, Utah Code Annotated 1953
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78-31c-111, Utah Code Annotated 1953
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78-31c-112, Utah Code Annotated 1953
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78-31c-113, Utah Code Annotated 1953
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78-31c-114, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
78-31c-101
is enacted to read:
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CHAPTER 31c. UTAH UNIFORM MEDIATION ACT
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78-31c-101. Title.
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This chapter is known as the "Utah Uniform Mediation Act."
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Section 2.
Section
78-31c-102
is enacted to read:
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78-31c-102. Definitions.
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As used in this chapter:
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(1) "Mediation" means a process in which a mediator facilitates communication and
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negotiation between parties to assist them in reaching a voluntary agreement regarding their
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dispute.
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(2) "Mediation communication" means conduct or a statement, whether oral, in a
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record, verbal, or nonverbal, that occurs during a mediation or is made for purposes of
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considering, conducting, participating in, initiating, continuing, or reconvening a mediation or
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retaining a mediator.
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(3) "Mediation party" means a person that participates in a mediation and whose
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agreement is necessary to resolve the dispute.
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(4) "Mediator" means an individual who S. is neutral, and .S conducts a mediation.
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(5) "Nonparty participant" means a person, other than a party or mediator, that
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participates in a mediation.
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(6) "Person" means an individual, corporation, estate, trust, business trust, partnership,
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limited liability company, association, joint venture, government, governmental subdivision,
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agency, or instrumentality, public corporation, or any other legal or commercial entity.
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(7) "Proceeding" means:
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(a) a judicial, administrative, arbitral, or other adjudicative process, including related
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prehearing and posthearing motions, conferences, and discovery; or
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(b) a legislative hearing or similar process.
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(8) "Record" means information that is inscribed on a tangible medium or that is stored
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in an electronic or other medium and is retrievable in perceivable form.
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(9) "Sign" means:
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(a) to execute or adopt a tangible symbol with the present intent to authenticate a
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record; or
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(b) to attach or logically associate an electronic symbol, sound, or process to or with a
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record with the present intent to authenticate a record.
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Section 3.
Section
78-31c-103
is enacted to read:
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78-31c-103. Scope.
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(1) Except as otherwise provided in Subsection (2) or (3), this chapter applies to a
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mediation in which:
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(a) the mediation parties are required to mediate by statute, court, or administrative
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agency rule or referred to mediation by a court, administrative agency, or arbitrator;
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(b) the mediation parties and the mediator agree to mediate in a record that
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demonstrates an expectation that mediation communications will be privileged against
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disclosure; or
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(c) the mediation parties use as a mediator an individual who holds himself or herself
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out as a mediator or the mediation is provided by an entity that holds itself out as providing
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mediation.
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(2) The chapter does not apply to a mediation:
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(a) relating to the establishment, negotiation, administration, or termination of a
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collective bargaining relationship;
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(b) relating to a dispute that is pending under or is part of the processes established by
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a collective bargaining agreement, except that the chapter applies to a mediation arising out of
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a dispute that has been filed with an administrative agency or court;
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(c) conducted by a judge who might make a ruling on the case; or
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(d) conducted under the auspices of:
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(i) a primary or secondary school if all the parties are students; or
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(ii) a correctional institution for youths if all the parties are residents of that institution.
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(3) If the parties agree in advance in a signed record, or a record of proceeding reflects
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agreement by the parties, that all or part of a mediation is not privileged, the privileges under
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Sections
78-31c-104
through
78-31c-106
do not apply to the mediation or part agreed upon.
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However, Sections
78-31c-104
through
78-31c-106
apply to a mediation communication made
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by a person that has not received actual notice of the agreement before the communication is
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made.
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Section 4.
Section
78-31c-104
is enacted to read:
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78-31c-104. Privilege against disclosure -- Admissibility -- Discovery.
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(1) Except as otherwise provided in Section
78-31c-106
, a mediation communication is
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privileged as provided in Subsection (2) and is not subject to discovery or admissible in
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evidence in a proceeding unless waived or precluded as provided by Section
78-31c-105
.
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(2) In a proceeding, the following privileges apply:
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(a) A mediation party may refuse to disclose, and may prevent any other person from
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disclosing, a mediation communication.
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(b) A mediator may refuse to disclose a mediation communication, and may prevent
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any other person from disclosing a mediation communication of the mediator.
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(c) A nonparty participant may refuse to disclose, and may prevent any other person
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from disclosing, a mediation communication of the nonparty participant.
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(3) Evidence or information that is otherwise admissible or subject to discovery does
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not become inadmissible or protected from discovery solely by reason of its disclosure or use in
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a mediation.
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Section 5.
Section
78-31c-105
is enacted to read:
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78-31c-105. Waiver and preclusion of privilege.
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(1) A privilege under Section
78-31c-104
may be waived in a record or orally during a
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proceeding if it is expressly waived by all parties to the mediation, and:
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(a) in the case of the privilege of a mediator, it is expressly waived by the mediator;
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and
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(b) in the case of the privilege of a nonparty participant, it is expressly waived by the
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nonparty participant.
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(2) A person that discloses or makes a representation about a mediation
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communication which prejudices another person in a proceeding is precluded from asserting a
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privilege under Section
78-31c-104
, but only to the extent necessary for the person prejudiced
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to respond to the representation or disclosure.
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(3) A person that intentionally uses a mediation to plan, attempt to commit or commit a
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crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting
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a privilege under Section
78-31c-104
.
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Section 6.
Section
78-31c-106
is enacted to read:
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78-31c-106. Exceptions to privilege.
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(1) There is no privilege under Section
78-31c-104
for a mediation communication that
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is:
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(a) in an agreement evidenced by a record signed by all parties to the agreement;
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(b) available to the public under Title 63, Chapter 2, Government Records Access and
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Management Act, or made during a mediation session which is open, or is required by law to
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be open, to the public;
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(c) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
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(d) intentionally used to plan a crime, attempt to commit or commit a crime, or to
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conceal an ongoing crime or ongoing criminal activity;
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(e) sought or offered to prove or disprove a claim or complaint of professional
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misconduct or malpractice filed against a mediator;
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(f) except as otherwise provided in Subsection (3), sought or offered to prove or
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disprove a claim or complaint of professional misconduct or malpractice filed against a
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mediation party, nonparty participant, or representative of a party based on conduct occurring
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during a mediation; or
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(g) S. [
sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation
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in a proceeding in which a child or adult protective services agency is a party, unless the case is
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referred by a court to mediation and a public agency participates.
] subject to the reporting
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requirements in 62A-4a-403 or 62A-3-305. .S
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(2) There is no privilege under Section
78-31c-104
if a court, administrative agency, or
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arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of
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the evidence has shown that:
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(a) the evidence is not otherwise available;
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(b) there is a need for the evidence that substantially outweighs the interest in
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protecting confidentiality; and
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(c) the mediation communication is sought or offered in:
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(i) a court proceeding involving a felony or misdemeanor; or
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(ii) except as otherwise provided in Subsection (3), a proceeding to prove a claim to
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rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
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(3) A mediator may not be compelled to provide evidence of a mediation
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communication referred to in Subsection (1)(f) or (2)(c)(ii).
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(4) If a mediation communication is not privileged under Subsection (1) or (2), only
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the portion of the communication necessary for the application of the exception from
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nondisclosure may be admitted. Admission of evidence under Subsection (1) or (2) does not
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render the evidence, or any other mediation communication, discoverable or admissible for any
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other purpose.
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Section 7.
Section
78-31c-107
is enacted to read:
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78-31c-107. Prohibited mediator reports.
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(1) Except as required in Subsection (2), a mediator may not make a report,
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assessment, evaluation, recommendation, finding, or other communication regarding a
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mediation to a court, administrative agency, or other authority that may make a ruling on the
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dispute that is the subject of the mediation.
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(2) A mediator may disclose:
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(a) whether the mediation occurred or has terminated, whether a settlement was
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reached, and attendance;
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(b) a mediation communication as permitted under Section
78-31c-106
; or
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(c) a mediation communication evidencing abuse, neglect, abandonment, or
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exploitation of an individual to a public agency responsible for protecting individuals against
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such mistreatment.
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(3) A communication made in violation of Subsection (1) may not be considered by a
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court, administrative agency, or arbitrator.
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Section 8.
Section
78-31c-108
is enacted to read:
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78-31c-108. Confidentiality.
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Unless subject to Title 52, Chapter 4, Open and Public Meetings, and Title 63, Chapter
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2, Government Records Access and Management Act, mediation communications are
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confidential to the extent agreed by the parties or provided by other law or rule of this state.
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Section 9.
Section
78-31c-109
is enacted to read:
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78-31c-109. Mediator's disclosure of conflicts of interest -- Background.
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(1) Before accepting a mediation, an individual who is requested to serve as a mediator
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shall:
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(a) make an inquiry that is reasonable under the circumstances to determine whether
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there are any known facts that a reasonable individual would consider likely to affect the
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impartiality of the mediator, including a financial or personal interest in the outcome of the
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mediation and an existing or past relationship with a mediation party or foreseeable participant
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in the mediation; and
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(b) disclose any known fact to the mediation parties as soon as practical before
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accepting a mediation.
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(2) If a mediator learns any fact described in Subsection (1)(a) after accepting a
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mediation, the mediator shall disclose it as soon as practicable.
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(3) At the request of a mediation party, an individual who is requested to serve as a
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mediator shall disclose the mediator's qualifications to mediate a dispute.
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(4) Subsections (1), (2), (3), and (6) do not apply to an individual acting as a judge S. or
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ombudsman .S .
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(5) This chapter does not require that a mediator have a special qualification by
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background or profession.
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(6) A mediator must be impartial, unless after disclosure of the facts required in
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Subsections (1) and (2) to be disclosed, the parties agree otherwise.
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Section 10.
Section
78-31c-110
is enacted to read:
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78-31c-110. Participation in mediation.
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An attorney or other individual designated by a party may accompany the party to, and
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participate in, a mediation. A waiver of participation given before the mediation may be
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rescinded.
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Section 11.
Section
78-31c-111
is enacted to read:
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78-31c-111. International commercial mediation.
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(1) In this section:
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(a) "International commercial mediation" means an international commercial
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conciliation as defined in Article 1 of the Model Law.
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(b) "Model Law" means the Model Law on International Commercial Conciliation
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adopted by the United Nations Commission on International Trade Law on 28 June 2002 and
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recommended by the United Nations General Assembly in a resolution (A/RES/57/18) dated
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19 November 2002.
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(2) Except as otherwise provided in Subsections (3) and (4), if a mediation is an
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international commercial mediation, the mediation is governed by the Model Law.
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(3) Unless the parties agree in accordance with Subsection
78-31c-103
(3) that all or
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part of an international commercial mediation is not privileged, Sections
78-31c-104
through
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78-31c-106
and any applicable definitions in Section
78-31c-102
of this chapter apply to the
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mediation and nothing in Article 10 of the Model Law derogates from Sections
78-31c-104
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through
78-31c-106
.
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(4) If the parties to an international commercial mediation agree under Article 1,
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Section (7), of the Model Law that the Model Law does not apply, this chapter applies.
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Section 12.
Section
78-31c-112
is enacted to read:
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78-31c-112. Relation to Electronic Signatures in Global and National Commerce
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Act.
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This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global
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and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or
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supersede Section 101(c) of that act or authorize electronic delivery of any of the notices
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described in Section 103(b) of that act.
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Section 13.
Section
78-31c-113
is enacted to read:
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78-31c-113. Uniformity of application and construction.
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In applying and construing this chapter, consideration should be given to the need to
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promote uniformity of the law with respect to its subject matter among states that enact it.
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Section 14.
Section
78-31c-114
is enacted to read:
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78-31c-114. Application to existing agreements or referrals.
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(1) This chapter governs a mediation pursuant to a referral or an agreement to mediate
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made on or after May 1, 2006.
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(2) Notwithstanding Subsection (1), on or after May 1, 2007, this chapter governs all
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agreements to mediate whenever made.
Legislative Review Note
as of 1-5-06 3:28 PM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.