(1) Notify the court that the parties have chosen pursuant to a written agreement to pursue an alternative process different from the process chosen by the court;

(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 a nonbinding alternative dispute resolution process pursuant to this act, discovery may proceed 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 a nonbinding alternative dispute resolution process shall avoid any conflict of interest. Even if the neutral believes that no disqualifying conflict exists, the neutral shall:

(1) Before agreeing to serve, make a reasonable inquiry to determine whether there are any facts that would cause a reasonable person to believe that the neutral has a conflict of interest;

(2) As soon as practicable, disclose to the parties 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. Additionally, the court may require a change of a neutral upon its own motion in processes where a party is not represented by counsel if necessary to protect the rights of such unrepresented party.

Alternative dispute resolution communications, as defined in the act, shall not be admissible as evidence in any proceeding or subject to discovery. However, evidence or information that is otherwise admissible or subject to discovery shall not be inadmissible or protected from discovery solely because of its disclosure or use in the process. Additionally, 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 an offense, 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.

If requested by a party or if necessary to ensure the confidentiality of the communications, the hearing shall be conducted in the judge's chambers. Any participant and the neutral has standing to intervene in any proceedings in order to object to the admissibility of communications made by that participant or neutral.

Furthermore, this act provides that 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. Additionally, 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 parties signed the agreement 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. Additionally, 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 participants who intervene to contest the disclosure or admission of the communication or who respond 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. Furthermore, this act shall not preclude any court from referring any matter to a nonbinding alternative dispute resolution process in order to effectuate the administration of justice.

This act shall only apply when the court has referred an individual civil case to a nonbinding alternative dispute resolution process, either by rule or court order, or pursuant to a written agreement of the parties 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, this act does not require any party to settle any claim or attend a mediation with counsel if the party is unrepresented.

If the court has not referred a case 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. Finally, this act provides that all settlement agreements shall be in writing.

This act is similar to SB 1148 (2022), SB 591 (2021), HB 953 (2021), and HB 2534 (2020).

KATIE O'BRIEN