Establishes the uniform mediation act; establishes that a mediation communication is privileged and is not subject to discovery or admissible in evidence unless waived or precluded; prohibits certain reports to be made by mediators; establishes that mediation communications are confidential; requires mediators to disclose conflicts of interests.
STATE OF NEW YORK
________________________________________________________________________
8497
2009-2010 Regular Sessions
IN ASSEMBLY
May 21, 2009
___________
Introduced by M. of A. LENTOL, KAVANAGH -- read once and referred to the
Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to estab-
lishing the uniform mediation act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "uniform mediation act".
3 § 2. The civil practice law and rules is amended by adding a new arti-
4 cle 74 to read as follows:
5 ARTICLE 74
6 UNIFORM MEDIATION
7 Section 7401. Definitions.
8 7402. Scope.
9 7403. Privilege against disclosure; admissibility; discovery.
10 7404. Waiver and preclusion of privilege.
11 7405. Exceptions to privilege.
12 7406. Prohibited mediator reports.
13 7407. Confidentiality.
14 7408. Mediator's disclosure of conflicts of interest; back-
15 ground.
16 7409. Participation in mediation.
17 7410. Relation to electronic signatures in global and national
18 commerce.
19 7411. Uniformity of application and construction.
20 § 7401. Definitions. As used in this article the following terms shall
21 have the following meanings:
22 (a) "Mediation" means a process in which a mediator facilitates commu-
23 nication and negotiation between parties to assist them in reaching a
24 voluntary agreement regarding their dispute.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11709-01-9
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1 (b) "Mediation communication" means a statement, whether oral or in a
2 record or verbal or nonverbal, that occurs during a mediation or is made
3 for purposes of considering, conducting, participating in, initiating,
4 continuing, or reconvening a mediation or retaining a mediator.
5 (c) "Mediator" means an individual who conducts a mediation.
6 (d) "Mediation party" means a person that participates in a mediation
7 and whose agreement is necessary to resolve the dispute.
8 (e) "Nonparty participant" means a person, other than a party or medi-
9 ator, that participates in a mediation.
10 (f) "Person" means an individual, corporation, business trust, estate,
11 trust, partnership, limited liability company, association, joint
12 venture, government, governmental subdivision, agency, or instrumentali-
13 ty, public corporation, or any other legal or commercial entity.
14 (g) "Proceeding" means:
15 (1) a judicial, administrative, arbitral, or other adjudicative proc-
16 ess, including related pre-hearing and post-hearing motions, confer-
17 ences, and discovery; or
18 (2) a legislative hearing or similar process.
19 (h) "Record" means information that is inscribed on a tangible medium
20 or that is stored in an electronic or other medium and is retrievable in
21 perceivable form.
22 (i) "Sign" means:
23 (1) to execute or adopt a tangible symbol with the present intent to
24 authenticate a record; or
25 (2) to attach or logically associate an electronic symbol, sound, or
26 process to or with a record with the present intent to authenticate a
27 record.
28 § 7402. Scope. (a) Except as otherwise provided in subdivision (b) or
29 (c), this article applies to a mediation in which:
30 (1) the mediation parties are required to mediate by statute or court
31 or administrative agency rule or referred to mediation by a court,
32 administrative agency, or arbitrator;
33 (2) the mediation parties and the mediator agree to mediate in a
34 record that demonstrates an expectation that mediation communications
35 will be privileged against disclosure; or
36 (3) the mediation parties use as a mediator an individual who holds
37 himself or herself out as a mediator, or the mediation is provided by a
38 person that holds itself out as providing mediation.
39 (b) This article does not apply to a mediation:
40 (1) relating to the establishment, negotiation, administration, or
41 termination of a collective bargaining relationship;
42 (2) relating to a dispute that is pending under or is part of the
43 processes established by a collective bargaining agreement, except that
44 this article shall apply to a mediation arising out of a dispute that
45 has been filed with an administrative agency or court;
46 (3) conducted by a judge who might make a ruling on the case; or
47 (4) conducted under the auspices of:
48 (i) a primary or secondary school if all the parties are students; or
49 (ii) a correctional institution for youths if all the parties are
50 residents of that institution.
51 (c) If the parties agree in advance in a signed record, or a record of
52 proceeding so reflects, that all or part of a mediation is not privi-
53 leged, the privileges under sections seventy-four hundred three, seven-
54 ty-four hundred four and seventy-four hundred five do not apply to the
55 mediation or part agreed upon. However, section seventy-four hundred
56 three applies to a mediation communication made by a person that has not
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1 received actual notice of the agreement before the communication is
2 made.
3 § 7403. Privilege against disclosure; admissibility; discovery. (a)
4 Except as otherwise provided in section seventy-four hundred five, a
5 mediation communication is privileged as provided in subdivision (b) and
6 is not subject to discovery or admissible in evidence in a proceeding
7 unless waived or precluded as provided in section seventy-four hundred
8 four.
9 (b) In a proceeding, the following privileges apply:
10 (1) A mediation party may refuse to disclose, and may prevent any
11 other person from disclosing, a mediation communication.
12 (2) A mediator may refuse to disclose a mediation communication, and
13 may prevent any other person from disclosing a mediation communication
14 of the mediator.
15 (3) A nonparty participant may refuse to disclose, and may prevent any
16 other person from disclosing, a mediation communication of the nonparty
17 participant.
18 (c) Evidence or information that is otherwise admissible or subject to
19 discovery does not become inadmissible or protected from discovery sole-
20 ly by reason of its disclosure or use in a mediation.
21 § 7404. Waiver and preclusion of privilege. (a) A privilege under
22 section seventy-four hundred three may be waived in a record or orally
23 during a proceeding if it is expressly waived by all parties to the
24 mediation and:
25 (1) in the case of the privilege of a mediator, it is expressly waived
26 by the mediator; and
27 (2) in the case of the privilege of a nonparty participant, it is
28 expressly waived by the nonparty participant.
29 (b) A person that discloses or makes a representation about a medi-
30 ation communication which prejudices another person in a proceeding is
31 precluded from asserting a privilege under section seventy-four hundred
32 three, but only to the extent necessary for the person prejudiced to
33 respond to the representation or disclosure.
34 (c) A person that intentionally uses a mediation to plan, to attempt
35 to commit, or to commit a crime, or to conceal an ongoing crime or ongo-
36 ing criminal activity, is precluded from asserting a privilege under
37 section seventy-four hundred three.
38 § 7405. Exceptions to privilege. (a) There is no privilege under
39 section seventy-four hundred three for a mediation communication that
40 is:
41 (1) in an agreement evidenced by a record signed by all parties to the
42 agreement;
43 (2) available to the public under article six or seven of the public
44 officers law, or made during a session of a mediation which is open, or
45 is required by law to be open, to the public;
46 (3) a threat or statement of a plan to inflict bodily injury or commit
47 a crime of violence;
48 (4) intentionally used to plan a crime, attempt to commit a crime, or
49 to conceal an ongoing crime or ongoing criminal activity;
50 (5) later sought or offered to prove or disprove a claim or complaint
51 of professional misconduct or malpractice filed against a mediator;
52 (6) except as otherwise provided in subdivision (c), later sought or
53 offered to prove or disprove a claim or complaint of professional
54 misconduct or malpractice filed against a mediation party, nonparty
55 participant, or representative of a party based on conduct occurring
56 during a mediation; or
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1 (7) later sought or offered in a proceeding in which a child or adult
2 protective services agency is a party to prove or disprove abuse,
3 neglect, abandonment, or exploitation, unless the child or adult protec-
4 tive services agency participated in the mediation.
5 (b) There is no privilege under section seventy-four hundred three if
6 a court, administrative agency, or arbitrator finds, after a hearing
7 held in camera, that the party seeking discovery or the proponent of the
8 evidence has shown that the evidence is not otherwise available, that
9 there is a need for the evidence that substantially outweighs the inter-
10 est in protecting confidentiality, and that the mediation communication
11 is sought or offered in:
12 (1) a court proceeding involving a felony; or
13 (2) except as otherwise provided in subdivision (c), a proceeding (i)
14 to prove a claim to rescind or reform, or (ii) to establish a defense to
15 avoid liability on, a contract arising out of the mediation.
16 (c) A mediator may not be compelled to provide evidence of a mediation
17 communication referred to in paragraph six of subdivision (a) or para-
18 graph two of subdivision (b).
19 (d) If a mediation communication is not privileged under subdivision
20 (a) or (b), only that portion of the communication necessary for the
21 application of the exception from nondisclosure may be admitted. Admis-
22 sion of evidence under subdivision (a) or (b) does not render the
23 evidence, or any other mediation communication, discoverable or admissi-
24 ble for any other purpose.
25 § 7406. Prohibited mediator reports. (a) Except as required in subdi-
26 vision (b), a mediator may not make a report, assessment, evaluation,
27 recommendation, finding, or other communication regarding a mediation to
28 a court, administrative agency, or other authority that may make a
29 ruling on the dispute that is the subject of the mediation.
30 (b) A mediator may disclose:
31 (1) whether the mediation occurred or has terminated, or whether a
32 settlement was reached, and attendance;
33 (2) a mediation communication as permitted under section seventy-four
34 hundred five; or
35 (3) a mediation communication evidencing abuse, neglect, abandonment,
36 or exploitation of an individual to a public agency responsible for
37 protecting individuals against such mistreatment.
38 (c) A communication made in violation of subdivision (a) may not be
39 considered by a court, administrative agency, or arbitrator.
40 § 7407. Confidentiality. Unless subject to article six or seven of the
41 public officers law, mediation communications are confidential to the
42 greatest extent agreed to by the parties or provided by this article or
43 other law or rule of this state.
44 § 7408. Mediator's disclosure of conflicts of interest; background.
45 (a) Before accepting a mediation, an individual who is requested to
46 serve as a mediator shall:
47 (1) make an inquiry that is reasonable under the circumstances to
48 determine whether there are any known facts that a reasonable individual
49 would consider likely to affect the impartiality of the mediator,
50 including a financial or personal interest in the outcome of the medi-
51 ation and an existing or past relationship with a mediation party or
52 foreseeable participant in the mediation; and
53 (2) disclose any such known fact to the mediation parties as soon as
54 is practical before accepting a mediation.
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1 (b) If a mediator learns any fact described in paragraph one of subdi-
2 vision (a) after accepting a mediation, the mediator shall disclose it
3 as soon as is practicable.
4 (c) At the request of the mediation party, an individual who is
5 requested to serve as a mediator shall disclose the mediator's quali-
6 fications to mediate a dispute.
7 (d) A person that violates subdivision (a) or (b) is precluded by the
8 violation from asserting a privilege as to his or her own statements
9 under section seventy-four hundred three.
10 (e) Subdivisions (a), (b), and (c) do not apply to an individual
11 acting as a judge.
12 (f) No provision of this article requires that a mediator have a
13 special qualification by background or profession.
14 § 7409. Participation in mediation. An attorney may represent a party,
15 or another individual designated by a party may accompany the party to,
16 and participate in, a mediation. A waiver of representation or partic-
17 ipation given before the mediation may be rescinded.
18 § 7410. Relation to electronic signatures in global and national
19 commerce. This article modifies, limits, or supersedes the federal Elec-
20 tronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001
21 et seq., but this article does not modify, limit, or supersede § 101(c)
22 of such act or authorize electronic delivery of any of the notices
23 described in § 103(b) of such act.
24 § 7411. Uniformity of application and construction. In applying and
25 construing this article, consideration must be given to the need to
26 promote uniformity of the law with respect to its subject matter among
27 states that enact it.
28 § 3. Severability clause. If any provision of this act or its applica-
29 tion to any person or circumstance is held invalid, the invalidity does
30 not affect other provisions or applications of this act which can be
31 given effect without the invalid provision or application, and to this
32 end the provisions of this act are severable.
33 § 4. This act shall take effect on the first of January next succeed-
34 ing the date on which it shall have become a law and shall apply to all
35 agreements to mediate and mediations pursuant to a referral entered into
36 on or after such effective date.
