SB 591 - This act establishes provisions relating to procedures for alternative dispute resolution processes. A court may refer, either by rule or order, any individual civil case or category of civil cases to any nonbinding alternative dispute resolution process. Within 30 days of referral, the parties may: (1) Notify the court that the parties have chosen to pursue an alternative process different from the process chosen by the court if such choice is evidenced in a written agreement between the parties;
(2) Notify the court that the parties have agreed to delay such process until a date certain, which may be modified by the court, to allow for the exchange of specified information, identification of representatives with authority, or any other identified action or event related to the parties' ability to participate effectively in the process; or
(3) If any party, after conferring with the other parties, concludes that the process has no reasonable chance of helping the parties to understand or resolve a procedural or substantive issue in the matter or if there is a compelling circumstance for not participating in the process, the party may file a motion for relief that sets forth the reasons for not participating.
Once a motion for relief has been filed, the process ordered by the court shall not occur until the court rules on such motion. If a court grants the motion, the matter shall not be referred to an alternative dispute resolution process without compelling circumstances.
In any action referred to an alternative dispute resolution process, discovery may proceed as in any other action before, during, and after the process is held. However, the court may stay discovery in order to promote savings in both time and expense without sacrificing the quality of justice.
A neutral individual ("neutral") who is appointed by the court or requested by the parties to serve in an alternative dispute resolution process shall avoid any conflict of interest. Even if the neutral believes that no disqualifying conflict exists, the neutral shall:
(1) Make a reasonable inquiry, before agreeing to serve, to determine whether there are any facts that would cause a reasonable person to believe that the neutral has a conflict of interest;
(2) Disclose to the parties, as soon as practicable, facts and information relevant to any conflicts of interest that are reasonably known to the neutral; and
(3) If, after accepting a designation, the neutral learns of any previously undisclosed information that could reasonably suggest a conflict of interest, the neutral shall promptly disclose the information to the parties.
After disclosure of a conflict, the process may proceed if all parties have agreed in writing to service by the neutral or an organization independently administering the process determines under the rules adopted by a written agreement of the parties that the neutral may continue to serve. Any party believing a court-appointed neutral has a conflict of interest may request that the neutral recuse himself or herself or may file a motion with the court for disqualification if the neutral declines to recuse. The court may also review the choice of a neutral on its own motion in any alternative dispute resolution process involving a party that is not represented by counsel and may require a change of a neutral if necessary to protect the rights of an unrepresented party.
Alternative dispute resolution communications, as defined in the act, shall not be admissible as evidence in any proceeding or subject to discovery. Evidence or information that is otherwise admissible or subject to discovery shall not be inadmissible or protected from discovery solely by reason of its disclosure or use in the process. A court may admit communications, upon motion by a party and following a hearing, if the court finds that the communication is relevant and admissible and the communication was:
(1) Made in the presence of a mandated reporter and pertains to abuse or neglect that such mandated reporter is required by state law or regulation to report;
(2) A substantial threat or statement of a plan to inflict bodily injury capable of causing death or substantial bodily harm that is reasonably certain to occur;
(3) Intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or criminal activity; or
(4) Necessary to establish or defend against a claim of professional misconduct or malpractice filed against or on behalf of a participant that is based on conduct occurring during the process.
The hearing shall be conducted without the public if requested by a party or if the court determines on its own motion that such exclusion is necessary to ensure the confidentiality of the communications. Any participant or the neutral in an alternative dispute resolution process has standing to intervene in any proceedings in order to object to the admissibility of communications made by that participant or neutral.
No neutral, agent or employee thereof, or agent or employee of the organization through which the neutral provided services shall be subpoenaed or otherwise compelled to disclose any alternative dispute resolution communication. No neutral who is a licensed attorney shall be required to disclose any alternative dispute resolution communication to which a reporting obligation might otherwise apply in the rules regulating professional conduct of attorneys. However, a neutral may be subpoenaed in an action to enforce a written settlement agreement, but only for the limited purpose of testifying that the agreement was signed by the parties in the presence of the neutral.
The court may request that the neutral or the parties provide progress reports on the alternative dispute resolution processes related to the pending civil actions. The court may order the party seeking admission of an alternative dispute resolution communication to pay the costs and fees of the neutral or any other person participating in the process who intervenes to contest the disclosure or admission of the communication or who responds to a subpoena regarding the alternative dispute resolution communications.
Unless the parties have entered into a written agreement providing for a binding alternative dispute resolution process, the processes conducted pursuant to this act shall be nonbinding.
This act shall apply only to those alternative dispute resolution processes made by court order or referral or when the parties enter into a written agreement expressly providing that this act shall apply. This act is not intended to undermine the right of litigants to a jury trial in the event that a resolution satisfactory to the parties is not achieved. Additionally, nothing in this act is deemed to require any party to settle any claim or any party to attend a mediation with counsel if the party is self-represented.
If the court has not ordered the parties to an alternative dispute resolution process and if the parties do not elect to use the provisions of this act, the process shall be regarded as settlement negotiations. If the parties to the dispute have agreed in writing to submit the dispute to an alternative dispute resolution process but have not invoked the provisions of this act, the neutral shall not be subpoenaed or otherwise compelled to disclose any matter revealed in the process of setting up or conducting such alternative dispute resolution process.
This act is substantially similar to HB 953 (2021) and HB 2534 (2020).
KATIE O'BRIEN