1.1                          A bill for an act 
  1.2             relating to civil actions; regulating mediation; 
  1.3             providing a nondisclosure privilege; regulating 
  1.4             mediator testimony; amending Minnesota Statutes 1998, 
  1.5             section 595.02, subdivisions 1 and 1a; proposing 
  1.6             coding for new law in Minnesota Statutes, chapter 572; 
  1.7             repealing Minnesota Statutes 1998, sections 572.35, 
  1.8             subdivision 1; and 572.37. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  [572.405] [MEDIATION PRIVILEGE.] 
  1.11     (a) The parties to a mediation conducted pursuant to court 
  1.12  rule or order, statutory authority, or a private agreement in 
  1.13  which the parties have agreed with the mediator to maintain the 
  1.14  confidentiality of the mediation shall have a privilege not to 
  1.15  disclose and the right to preclude the mediator from disclosing 
  1.16  informally, pursuant to pretrial discovery, at trial or at an 
  1.17  administrative proceeding, statements, conduct, or documents 
  1.18  relating to the mediation session unless excepted under section 
  1.19  572.408. 
  1.20     (b) A mediation under this section is defined as a forum in 
  1.21  which a neutral third party, who lacks the power or authority to 
  1.22  impose a settlement, facilitates communication between parties 
  1.23  to promote settlement. 
  1.24     Sec. 2.  [572.406] [WAIVER.] 
  1.25     The parties may waive the privilege if all parties agree.  
  1.26  The privilege may also be waived by prior disclosure by or 
  1.27  conduct manifesting waiver engaged in by the party asserting the 
  2.1   privilege. 
  2.2      Sec. 3.  [572.407] [MATERIALS OTHERWISE SUBJECT TO 
  2.3   DISCOVERY.] 
  2.4      Statements, documents, communications, or conduct that 
  2.5   would otherwise not be privileged, such as preexisting 
  2.6   documents, business records, or the identity of fact witness, do 
  2.7   not become privileged merely because they are used or disclosed 
  2.8   in mediated settlement discussions. 
  2.9      Sec. 4.  [572.408] [EXCEPTIONS.] 
  2.10     (a) The following statements, documents, communications, or 
  2.11  conduct are not privileged under section 572.405 and are subject 
  2.12  to disclosure unless specifically privileged by another law:  
  2.13     (1) evidence of past or present felonious actions, or 
  2.14  evidence of intent to commit a felony in the near future; 
  2.15     (2) the subject of mandatory reporting requirements by 
  2.16  other statutes or rules; 
  2.17     (3) relevant to an action to enforce, set aside, reform, or 
  2.18  interpret a settlement agreement; or 
  2.19     (4) relevant to civil or criminal actions brought by or 
  2.20  against the mediator or relevant to professional misconduct 
  2.21  proceedings relating to the conduct of the mediation. 
  2.22     (b) Where the settlement of a dispute is relevant and 
  2.23  admissible to prove bias or other consequential fact in 
  2.24  litigation, the evidence of settlement and the terms of the 
  2.25  settlement is not privileged under section 572.405. 
  2.26     Sec. 5.  [572.409] [COMPETENCY OF THE MEDIATOR.] 
  2.27     (a) The mediator is not competent to testify at a hearing, 
  2.28  deposition, or trial about the mediator's thought processes or 
  2.29  mental impressions or about the parties' thought processes 
  2.30  except as may be relevant and admissible in a civil or criminal 
  2.31  action or administrative or professional misconduct proceeding 
  2.32  by or against the mediator.  The mediator is competent to 
  2.33  testify to objective matters perceived by the mediator during 
  2.34  the mediation including statements made, conduct of the parties, 
  2.35  conduct of the mediator, and documents produced or signed to the 
  2.36  extent that the testimony is offered for and is relevant to one 
  3.1   of the exceptions to the mediation privilege set forth in 
  3.2   section 572.408. 
  3.3      (b) The mediator shall not testify or provide discovery to 
  3.4   parties in litigation unless: 
  3.5      (1) ordered to disclose by a court; or 
  3.6      (2) all parties and the mediator have agreed to the 
  3.7   mediator's disclosure. 
  3.8      The court shall not direct a mediator to testify or provide 
  3.9   discovery unless a party has first made a motion and established 
  3.10  that there is cause to believe that the mediator will be able to 
  3.11  provide relevant, nonprivileged testimony.  The mediator and all 
  3.12  parties to the mediation shall be given notice of the motion and 
  3.13  be provided an opportunity to appear and be heard at the 
  3.14  hearing.  In granting a motion for mediator testimony or 
  3.15  discovery, the court may make any order limiting the testimony 
  3.16  or discovery as justice requires and may order that fees and 
  3.17  expenses incurred by the mediator be paid by the moving party. 
  3.18     (c) In an action of proceeding by or against the mediator, 
  3.19  the mediator may testify or provide discovery about 
  3.20  nonprivileged matters without party agreement or court order. 
  3.21     Sec. 6.  Minnesota Statutes 1998, section 595.02, 
  3.22  subdivision 1, is amended to read: 
  3.23     Subdivision 1.  [COMPETENCY OF WITNESSES.] Every person of 
  3.24  sufficient understanding, including a party, may testify in any 
  3.25  action or proceeding, civil or criminal, in court or before any 
  3.26  person who has authority to receive evidence, except as provided 
  3.27  in this subdivision: 
  3.28     (a) A husband cannot be examined for or against his wife 
  3.29  without her consent, nor a wife for or against her husband 
  3.30  without his consent, nor can either, during the marriage or 
  3.31  afterwards, without the consent of the other, be examined as to 
  3.32  any communication made by one to the other during the marriage. 
  3.33  This exception does not apply to a civil action or proceeding by 
  3.34  one against the other, nor to a criminal action or proceeding 
  3.35  for a crime committed by one against the other or against a 
  3.36  child of either or against a child under the care of either 
  4.1   spouse, nor to a criminal action or proceeding in which one is 
  4.2   charged with homicide or an attempt to commit homicide and the 
  4.3   date of the marriage of the defendant is subsequent to the date 
  4.4   of the offense, nor to an action or proceeding for nonsupport, 
  4.5   neglect, dependency, or termination of parental rights.  
  4.6      (b) An attorney cannot, without the consent of the 
  4.7   attorney's client, be examined as to any communication made by 
  4.8   the client to the attorney or the attorney's advice given 
  4.9   thereon in the course of professional duty; nor can any employee 
  4.10  of the attorney be examined as to the communication or advice, 
  4.11  without the client's consent.  
  4.12     (c) A member of the clergy or other minister of any 
  4.13  religion shall not, without the consent of the party making the 
  4.14  confession, be allowed to disclose a confession made to the 
  4.15  member of the clergy or other minister in a professional 
  4.16  character, in the course of discipline enjoined by the rules or 
  4.17  practice of the religious body to which the member of the clergy 
  4.18  or other minister belongs; nor shall a member of the clergy or 
  4.19  other minister of any religion be examined as to any 
  4.20  communication made to the member of the clergy or other minister 
  4.21  by any person seeking religious or spiritual advice, aid, or 
  4.22  comfort or advice given thereon in the course of the member of 
  4.23  the clergy's or other minister's professional character, without 
  4.24  the consent of the person.  
  4.25     (d) A licensed physician or surgeon, dentist, or 
  4.26  chiropractor shall not, without the consent of the patient, be 
  4.27  allowed to disclose any information or any opinion based thereon 
  4.28  which the professional acquired in attending the patient in a 
  4.29  professional capacity, and which was necessary to enable the 
  4.30  professional to act in that capacity; after the decease of the 
  4.31  patient, in an action to recover insurance benefits, where the 
  4.32  insurance has been in existence two years or more, the 
  4.33  beneficiaries shall be deemed to be the personal representatives 
  4.34  of the deceased person for the purpose of waiving this 
  4.35  privilege, and no oral or written waiver of the privilege shall 
  4.36  have any binding force or effect except when made upon the trial 
  5.1   or examination where the evidence is offered or received.  
  5.2      (e) A public officer shall not be allowed to disclose 
  5.3   communications made to the officer in official confidence when 
  5.4   the public interest would suffer by the disclosure.  
  5.5      (f) Persons of unsound mind and persons intoxicated at the 
  5.6   time of their production for examination are not competent 
  5.7   witnesses if they lack capacity to remember or to relate 
  5.8   truthfully facts respecting which they are examined. 
  5.9      (g) A registered nurse, psychologist, consulting 
  5.10  psychologist, or licensed social worker engaged in a 
  5.11  psychological or social assessment or treatment of an individual 
  5.12  at the individual's request shall not, without the consent of 
  5.13  the professional's client, be allowed to disclose any 
  5.14  information or opinion based thereon which the professional has 
  5.15  acquired in attending the client in a professional capacity, and 
  5.16  which was necessary to enable the professional to act in that 
  5.17  capacity.  Nothing in this clause exempts licensed social 
  5.18  workers from compliance with the provisions of sections 626.556 
  5.19  and 626.557.  
  5.20     (h) An interpreter for a person handicapped in 
  5.21  communication shall not, without the consent of the person, be 
  5.22  allowed to disclose any communication if the communication 
  5.23  would, if the interpreter were not present, be privileged.  For 
  5.24  purposes of this section, a "person handicapped in 
  5.25  communication" means a person who, because of a hearing, speech 
  5.26  or other communication disorder, or because of the inability to 
  5.27  speak or comprehend the English language, is unable to 
  5.28  understand the proceedings in which the person is required to 
  5.29  participate.  The presence of an interpreter as an aid to 
  5.30  communication does not destroy an otherwise existing privilege. 
  5.31     (i) Licensed chemical dependency counselors shall not 
  5.32  disclose information or an opinion based on the information 
  5.33  which they acquire from persons consulting them in their 
  5.34  professional capacities, and which was necessary to enable them 
  5.35  to act in that capacity, except that they may do so:  
  5.36     (1) when informed consent has been obtained in writing, 
  6.1   except in those circumstances in which not to do so would 
  6.2   violate the law or would result in clear and imminent danger to 
  6.3   the client or others; 
  6.4      (2) when the communications reveal the contemplation or 
  6.5   ongoing commission of a crime; or 
  6.6      (3) when the consulting person waives the privilege by 
  6.7   bringing suit or filing charges against the licensed 
  6.8   professional whom that person consulted.  
  6.9      (j) A parent or the parent's minor child may not be 
  6.10  examined as to any communication made in confidence by the minor 
  6.11  to the minor's parent.  A communication is confidential if made 
  6.12  out of the presence of persons not members of the child's 
  6.13  immediate family living in the same household.  This exception 
  6.14  may be waived by express consent to disclosure by a parent 
  6.15  entitled to claim the privilege or by the child who made the 
  6.16  communication or by failure of the child or parent to object 
  6.17  when the contents of a communication are demanded.  This 
  6.18  exception does not apply to a civil action or proceeding by one 
  6.19  spouse against the other or by a parent or child against the 
  6.20  other, nor to a proceeding to commit either the child or parent 
  6.21  to whom the communication was made or to place the person or 
  6.22  property or either under the control of another because of an 
  6.23  alleged mental or physical condition, nor to a criminal action 
  6.24  or proceeding in which the parent is charged with a crime 
  6.25  committed against the person or property of the communicating 
  6.26  child, the parent's spouse, or a child of either the parent or 
  6.27  the parent's spouse, or in which a child is charged with a crime 
  6.28  or act of delinquency committed against the person or property 
  6.29  of a parent or a child of a parent, nor to an action or 
  6.30  proceeding for termination of parental rights, nor any other 
  6.31  action or proceeding on a petition alleging child abuse, child 
  6.32  neglect, abandonment or nonsupport by a parent.  
  6.33     (k) Sexual assault counselors may not be compelled to 
  6.34  testify about any opinion or information received from or about 
  6.35  the victim without the consent of the victim.  However, a 
  6.36  counselor may be compelled to identify or disclose information 
  7.1   in investigations or proceedings related to neglect or 
  7.2   termination of parental rights if the court determines good 
  7.3   cause exists.  In determining whether to compel disclosure, the 
  7.4   court shall weigh the public interest and need for disclosure 
  7.5   against the effect on the victim, the treatment relationship, 
  7.6   and the treatment services if disclosure occurs.  Nothing in 
  7.7   this clause exempts sexual assault counselors from compliance 
  7.8   with the provisions of sections 626.556 and 626.557.  
  7.9      "Sexual assault counselor" for the purpose of this section 
  7.10  means a person who has undergone at least 40 hours of crisis 
  7.11  counseling training and works under the direction of a 
  7.12  supervisor in a crisis center, whose primary purpose is to 
  7.13  render advice, counseling, or assistance to victims of sexual 
  7.14  assault.  
  7.15     (l) A person cannot be examined as to any communication or 
  7.16  document, including worknotes, made or used in the course of or 
  7.17  because of mediation pursuant to an agreement to mediate.  This 
  7.18  does not apply to the parties in the dispute in an application 
  7.19  to a court by a party to have a mediated settlement agreement 
  7.20  set aside or reformed.  A communication or document otherwise 
  7.21  not privileged does not become privileged because of this 
  7.22  paragraph.  This paragraph is not intended to limit the 
  7.23  privilege accorded to communication during mediation by the 
  7.24  common law. 
  7.25     (m) A child under ten years of age is a competent witness 
  7.26  unless the court finds that the child lacks the capacity to 
  7.27  remember or to relate truthfully facts respecting which the 
  7.28  child is examined.  A child describing any act or event may use 
  7.29  language appropriate for a child of that age. 
  7.30     (n) (m) A communication assistant for a telecommunications 
  7.31  relay system for communication-impaired persons shall not, 
  7.32  without the consent of the person making the communication, be 
  7.33  allowed to disclose communications made to the communication 
  7.34  assistant for the purpose of relaying. 
  7.35     Sec. 7.  Minnesota Statutes 1998, section 595.02, 
  7.36  subdivision 1a, is amended to read: 
  8.1      Subd. 1a.  [ALTERNATIVE DISPUTE RESOLUTION PRIVILEGE.] No 
  8.2   person presiding at any alternative dispute resolution 
  8.3   proceeding established pursuant to law, court rule, or by an 
  8.4   agreement to mediate, shall be competent to testify, in any 
  8.5   subsequent civil proceeding or administrative hearing, as to any 
  8.6   statement, conduct, decision, or ruling, occurring at or in 
  8.7   conjunction with the prior proceeding, except as to any 
  8.8   statement or conduct that could:  
  8.9      (1) constitute a crime; 
  8.10     (2) give rise to disqualification proceedings under the 
  8.11  rules of professional conduct for attorneys; or 
  8.12     (3) constitute professional misconduct. 
  8.13     This subdivision does not govern the competency or 
  8.14  privilege relating to testimony by mediators. 
  8.15     Sec. 8.  [APPLICATION.] 
  8.16     (a) This act supersedes any inconsistent provision of 
  8.17  Minnesota Statutes, section 494.02. 
  8.18     (b) This act supersedes Rule 114.08, paragraphs (a), (b), 
  8.19  and (c) of the Minnesota General Rules of Practice for the 
  8.20  District Courts. 
  8.21     (c) This act does not affect the scope of permissible 
  8.22  testimony or confidentiality in labor negotiations conducted by 
  8.23  the bureau of mediation services under Minnesota Statutes, 
  8.24  chapter 179, or in mediations conducted under Minnesota 
  8.25  Statutes, chapter 583. 
  8.26     Sec. 9.  [REPEALER.] 
  8.27     Minnesota Statutes 1998, section 572.35, subdivision 1; and 
  8.28  572.37, are repealed.