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AN ACT

RELATING TO MEDIATION; ENACTING THE MEDIATION PROCEDURES ACT;

ESTABLISHING CONFIDENTIALITY FOR MEDIATION COMMUNICATIONS;

PROVIDING EXCEPTIONS FOR DISCLOSURE OF MEDIATION

COMMUNICATIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the

"Mediation Procedures Act".

Section 2. DEFINITIONS.--As used in the Mediation

Procedures Act:

A. "mediation" means a process in which a

mediator:

(1) facilitates communication and

negotiation between mediation parties to assist them in

reaching an agreement regarding their dispute; or

(2) promotes reconciliation, settlement or

understanding between and among parties;

B. "mediation communication" means a statement,

whether oral or in a record or verbal or nonverbal, that

occurs during a mediation or is made for purposes of

considering, conducting, participating in, initiating,

continuing or reconvening a mediation or retaining a mediator;

C. "mediation party" means a person who

participates in a mediation and whose agreement is necessary

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to resolve the dispute;

D. "mediation program" means a program that

provides mediation services and is created or administered by

a court or court agency, a government or governmental

subdivision, agency or instrumentality of this state or a

tribal court, government or agency;

E. "mediator" means an individual who:

(1) holds the individual's self out as a

mediator and who conducts a mediation;

(2) the mediation parties agree to use as a

mediator and who conducts a mediation;

(3) is designated by a mediation program as

a mediator and who conducts a mediation; or

(4) is an observer who is permitted by the

mediation parties to watch and listen to the mediation for

educational or other administrative purposes;

F. "nonparty participant" means a person, other

than a mediation party or mediator, who participates in, is

present during the mediation or is a mediation program

administrator, including a person consulted by a mediation

party to assist the mediation party with evaluating,

considering or generating offers of settlement;

G. "person" means an individual, corporation,

business trust, estate, trust, partnership, limited liability

company, association, joint venture, government or

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governmental subdivision, agency or instrumentality, public

corporation or any other legal or commercial entity;

H. "proceeding" means:

(1) arbitration or a judicial,

administrative or other adjudicative process, including

related pre-hearing and post-hearing motions, conferences and

discovery; or

(2) a legislative hearing or similar

process;

I. "record" 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; and

J. "sign" means:

(1) to execute or adopt a tangible symbol

with the present intent to authenticate a record or to ratify

the agreement set forth in the record; or

(2) to attach or logically associate an

electronic symbol, sound or process to or with a record with

the present intent to authenticate a record or to ratify the

agreement set forth in the record.

Section 3. SCOPE.--

A. Except as otherwise provided in Subsection B of

this section, the Mediation Procedures Act applies to all

mediators, nonparty participants, mediation parties and a

mediation in which:

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(1) the mediation parties are required to

mediate by statute or court or administrative agency rule or

are referred to mediation by a court, administrative agency or

arbitrator; or

(2) the mediation parties and the mediator

agree to mediate and the agreement to mediate is evidenced by

a record that is signed by the mediation parties.

B. The Mediation Procedures Act 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

pursuant to or is part of the processes established by a

collective bargaining agreement, except that the Mediation

Procedures Act applies to a mediation arising out of a dispute

that has been filed with an administrative agency or court;

(3) conducted by a judge who might make a

ruling on the case; or

(4) agreed to in writing by the mediation

parties and the mediator prior to the mediation not to be

covered by the Mediation Procedures Act, declared in writing

by a mediation program prior to the mediation or declared in

writing by a court or court agency, a government or

governmental subdivision, agency or instrumentality of this

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state or a tribal court, government or agency prior to the

mediation not to be covered by the Mediation Procedures Act.

Section 4. CONFIDENTIALITY.--Except as otherwise

provided in the Mediation Procedures Act or by applicable

judicial court rules, all mediation communications are

confidential, and not subject to disclosure and shall not be

used as evidence in any proceeding.

Section 5. EXCEPTIONS--ADMISSIBILITY--DISCOVERY.--

A. Mediation communications are not confidential

pursuant to the Mediation Procedures Act if they:

(1) are contained in an agreement reached by

the mediation parties during a mediation, including an

agreement to mediate, and the agreement is evidenced by a

record signed by the mediation parties, except when parts of

the agreement are designated by the mediation parties to be

confidential or are confidential as otherwise provided by law;

(2) are communications that all mediation

parties agree may be disclosed, as evidenced by a record

signed by all mediation parties prior to or at the mediation;

(3) threaten or lead to actual violence in

the mediation;

(4) reveal the intent of a mediation party

to commit a felony or inflict bodily harm to the mediation

party's self or another person;

(5) disprove a felony charge;

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(6) are required by law to be made public or

otherwise disclosed;

(7) relate to abuse, neglect or criminal

activity that is not the subject of the mediation;

(8) are sought or offered to disprove a

claim or complaint of professional misconduct or malpractice

based on conduct during a mediation and filed against a

mediation party or nonparty participant;

(9) relate to the administrative facts of

the mediation, including:

(a) whether the mediation parties were

referred to mediation;

(b) whether a mediation occurred or has

terminated;

(c) the date, time and place of a

mediation;

(d) the persons in attendance at a

mediation; and

(e) whether a mediator received payment

for the mediation; or

(10) relate to whether the parties reached a

binding and enforceable settlement in the mediation.

B. Mediation communications may be disclosed if a

court, after hearing in camera and for good cause shown,

orders disclosure of evidence that is sought to be offered and

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is not otherwise available in an action on an agreement

arising out of a mediation evidenced by a record. Nothing in

this subsection shall require disclosure by a mediator of any

matter related to mediation communications.

C. Mediators shall not be required to make

disclosure, either through discovery or testimony at trial or

otherwise, of any matter related to mediation communications,

except:

(1) pursuant to Paragraphs (3) through (10)

of Subsection A and Paragraph (3) of Subsection D of this

section; and

(2) to prove or disprove a claim of mediator

misconduct or malpractice filed against a mediator.

D. Nothing in the Mediation Procedures Act shall

prevent:

(1) the discovery or admissibility of any

evidence that is otherwise discoverable or admissible, merely

because the evidence was presented during a mediation;

(2) the gathering of information for

research or educational purposes or for the purpose of

evaluating or monitoring the performance of a mediator;

provided that the mediation parties or the specific

circumstances of the dispute of the mediation parties are not

identified or identifiable;

(3) a court or court agency, a government or

governmental subdivision, agency or instrumentality of this

state or a tribal court, government or agency, when conducting

a mediation program under its auspices, from ordering prior to

the mediation that different or additional rules of

confidentiality shall apply to the mediation; or

(4) mediation parties from agreeing in

writing to additional or different confidentiality protections

prior to the mediation, subject to Paragraphs (3) through (10)

of Subsection A and Subsection C of this section.

Section 6. EFFECT OF AGREEMENT.--

A. If the mediation parties reach a settlement

agreement evidenced by a record signed by the mediation

parties, the agreement is enforceable in the same manner as

any other written contract. The agreement shall not affect

any outstanding court order unless the terms of the agreement

are incorporated into a subsequent order.

B. A court, administrative agency or arbitrator,

in its discretion, may incorporate the terms of the agreement

in the order or other document disposing of the matter.

Section 7. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.

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