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Current Status Bill Number:View additional legislative information at the LPITS web site.4499 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20020115 Primary Sponsor:Campsen All Sponsors:Campsen Drafted Document Number:l:\council\bills\nbd\11011ac02.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Uniform Mediation Act History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20020115 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND PROCEDURES BY ADDING CHAPTER 80 SO AS TO ENACT THE "UNIFORM MEDIATION ACT" TO PROVIDE THAT MEDIATION COMMUNICATIONS ARE PRIVILEGED, NOT SUBJECT TO DISCOVERY, AND NOT ADMISSIBLE IN EVIDENCE IN A PROCEEDING, TO ESTABLISH WHAT PRIVILEGES APPLY, TO AUTHORIZE CIRCUMSTANCES UNDER WHICH A PRIVILEGE CAN BE WAIVED, TO ESTABLISH THOSE MEDIATION COMMUNICATIONS NOT SUBJECT TO A PRIVILEGE, AND TO SET FORTH DISCLOSURE REQUIREMENTS FOR A MEDIATOR.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 15 of the 1976 Code is amended by adding:
Section 15-80-10. This chapter may be cited as the 'Uniform Mediation Act'.
Section 15-80-20. 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.
Section 15-80-30. As used in this chapter:
(1) 'Court' means the circuit courts of South Carolina.
(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, or 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 post-hearing 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) to execute or adopt a tangible symbol with the present intent to authenticate a record;
(b) to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.
Section 15-80-40. (A) Except as otherwise provided in subsection (B) or (C), 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 mediate 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 who holds itself, 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 the collective bargaining agreement, except that the chapter applies to a mediation arising out of a dispute that has been filed with a public agency or court;
(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 15-80-50 through 15-80-70 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 15-80-50 through 15-80-70 apply to a mediation communication made by a person who has not received actual notice of the agreement before the communication is made.
Section 15-80-50. (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 another person from disclosing, a mediation communication.
(2) A mediator may refuse to disclose a mediation communication, and may prevent another person from disclosing a mediation communication of the mediator.
(3) A nonparty participant may refuse to disclose, and may prevent another 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.
Section 15-80-60. (A) A privilege under Section 15-80-50 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 15-80-50 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 15-80-50.
Section 15-80-70. (A) There is no privilege under Section 15-80-50 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 the Freedom of Information Act 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 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).
(B) There is no privilege under Section 15-80-50 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 court proceeding involving a felony; 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).
(C) A mediator may not be compelled to provide evidence of a mediation communication referenced in subsection (A)(7) or (B)(2).
(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 practical before accepting a mediation any such fact known.
(E) If a mediator learns a fact described in subsection (D)(1) after accepting a mediation, the mediator shall disclose as soon as practicable.
(F) A mediator must be impartial, unless after disclosure of the facts required in subsections (D) and (E), 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) is precluded by the violation from asserting a privilege under Section 15-80-50.
(I) Unless otherwise required by law, no special qualification by background or profession is necessary to be a mediator under this chapter."
SECTION 2. This act takes effect upon approval by the Governor.
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