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F I S C A L I M P A C T R E P O R T

SPONSOR

Chasey

ORIGINAL DATE

LAST UPDATED

1/29/07

2/22/07 HB

192/aHJC

SHORT TITLE

Mediation Procedures Act

SB

ANALYST

C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Conflicts SB 592

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Education Department (PED)

Administrative Office of the Courts (AOC)

District Attorneys (DA)

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee amendment to House Bill 192 specifically amends Section 5 of

the bill by adding a new paragraph that provides that mediation communication related to

whether parties to mediation reached a binding and enforceable settlement is not confidential.

The remainder of the amendment involves minor numbering corrections to reflect the addition of

this new provision and the striking of a former provision addressing the same issue but in a

different way.

Synopsis of Original Bill

House Bill 192 enacts the Mediation Procedures Act (MPA), which establishes confidentiality

for mediation communications and provides for various exceptions to that confidentiality. It also

provides for enforcement of a settlement agreement reached through mediation.

House Bill 192/aHJC – Page

2

Section 3 defines the scope of the MPA and provides that it applies to a mediation in which the

mediation is required by statute, court or administrative agency rule or when referred to

mediation by a court, administrative agency or arbitrator. It also applies when the parties to the

mediation agree to mediate as evidenced by a record that is signed by the parties. It does not

apply to collective bargaining relationships and agreements, to a mediation conducted by a judge

who might make a ruling on a case, when the parties agree in a prior writing that the MPA will

not apply to the mediation or it is declared by rule of court or government prior to the mediation

that the MPA does not apply.

Section 4 provides that all communications in mediation are confidential and not subject to

disclosure or used as evidence except as provided in the MPA or by court rule.

Section 5 sets out the exceptions to confidentiality, which include when the parties agree in

writing either during or prior to a mediation that communications are not confidential, if the

communications threaten or lead to violence in the mediation, if they reveal intent to commit a

felony or inflict bodily harm, if they disprove a felony, if they are required by law to be public, if

they are sought or offered to disprove a claim of professional misconduct or malpractice or if

they relate to the administrative facts of the mediation. Mediation communications may also be

disclosed if a court orders disclosure after a hearing in camera and for good cause shown if the

evidence is not otherwise available in an action arising out of a mediation agreement. Mediators

shall not be required to make disclosure of mediation communications except as provided above

with the exception of the agreement of the parties to disclose or to prove or disprove a claim of

mediator misconduct or malpractice. Nothing in the MPA prevents a government agency from

ordering prior to mediation that different or additional rules of confidentiality shall apply.

Section 6 provides that written settlement agreements reached in mediation are enforceable like

any other written contract and that a court, administrative agency or arbitrator has the discretion

to incorporate the terms of the agreement in an order or other document disposing of the matter.

SIGNIFICANT ISSUES

The bill could apply to mediation provided in special education dispute resolution proceedings

conducted pursuant to the Individuals with Disabilities Education Improvement Act of 2004

(IDEA) and 6.31.2.13 NMAC of the state special education rules, since Section 3(A) of the bill

applies the MPA to mediators and mediation in which the parties agree to mediate as evidenced

by a record signed by the mediation parties. Under IDEA and the state rules, mediation is

voluntary and is requested in writing. See 34 CFR § 300.506 and 6.31.2.13(H)(3)(b) and

6.31.2.13(I)(8)(b) NMAC. However, the bill as currently drafted will not affect the mediation

program provided by the Special Education Bureau of the Public Education Department because

Section 5(D)(3) of the bill allows a government when conducting a mediation program under its

auspices to provide for different or additional rules of confidentiality that apply to a mediation.

As presently drafted, Section 6 of the bill is consistent with the enforcement of the settlement

agreement provisions in 34 CFR § 300.506(b)(7) and 6.31.2.13(H)(3)(c) NMAC, which provide

that a settlement agreement is enforceable in court.

ADMINISTRATIVE IMPLICATIONS

The bill would protect the confidentiality of mediation communications, and would also protect

mediators from having to testify or otherwise disclose those communications unless the parties

House Bill 192/aHJC – Page

3

agreed to do so. This would prove helpful to state agencies because it would help promote the

use of mediation to resolve disputes between agencies and their employees (or members of the

public

).

CONFLICT

SB592

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Since the special education mediation program is governed by both federal and state regulations,

there will be no consequences to the program if the bill is not enacted. Mediations will still

occur. Parties will move forward creating their own agreements to their mediation procedure.

CS/yr:csd