Session of 1998
                   
HOUSE BILL No. 2677
         
By Committee on Judiciary
         
1-21
            9             AN ACT concerning mediation; relating to the confidentiality thereof;
10             amending K.S.A. 75-4332 and K.S.A. 1997 Supp. 5-512, 23-605, 44-
11             817, 60-452a and 72-5427 and repealing the existing sections.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 1997 Supp. 5-512 is hereby amended to read as
15       follows: 5-512. (a) All verbal or written information transmitted between
16       any party to a dispute and a neutral person conducting a proceeding under
17       the dispute resolution act or the staff of an approved program shall be
18       confidential communications. No admission, representation or statement
19       made in the proceeding shall be admissible as evidence or subject to
20       discovery. A neutral person conducting a proceeding under the dispute
21       resolution act shall not be subject to process requiring the disclosure of
22       any matter discussed during the proceedings unless all the parties consent
23       to a waiver. Any party, including the neutral person conducting the pro-
24       ceeding, participating in the proceeding has a privilege in any action to
25       refuse to disclose, and to prevent a witness from disclosing, any com-
26       munication made in the course of the proceeding. The privilege may be
27       claimed by the party or anyone the party authorized to claim the privilege.
28           (b) The confidentiality and privilege requirements of this section shall
29       not apply to:
30           (1) Information that is reasonably necessary to establish a defense for
31       the neutral person or staff of an approved program conducting the pro-
32       ceeding in the case of an action against the neutral person or staff of an
33       approved program that is filed by a party to the proceeding;
34           (2) any information that the neutral person conducting the proceed-
35       ing is required to report under K.S.A. 38-1522, and amendments thereto;
36           (3) any information that is reasonably necessary to stop the commis-
37       sion of an ongoing crime or fraud or to prevent the commission of a crime
38       or fraud in the future for which there was an expressed intent to commit
39       such crime or fraud; or
40           (4) any information that the neutral person conducting the proceed-
41       ing is required to report or communicate under the specific provisions of
42       any statute or in order to comply with orders of a court.
43           Sec. 2. K.S.A. 1997 Supp. 23-605 is hereby amended to read as fol-

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  1       lows: 23-605. (a) A mediator appointed under K.S.A. 23-602 and amend-
  2       ments thereto shall treat all verbal or written information transmitted
  3       between any party to a dispute and a mediator conducting the proceeding,
  4       or the staff of an approved program under K.S.A. 5-501 et seq. and
  5       amendments thereto as confidential communications. No admission, rep-
  6       resentation or statement made in the proceeding shall be admissible as
  7       evidence or subject to discovery. A mediator shall not be subject to proc-
  8       ess requiring the disclosure of any matter discussed during the proceed-
  9       ings unless all the parties consent to a waiver. Any party, including the
10       neutral person or staff of an approved program conducting the proceed-
11       ing, participating in the proceeding has a privilege in any action to refuse
12       to disclose, and to prevent a witness from disclosing, any communication
13       made in the course of the proceeding. The privilege may be claimed by
14       the party or anyone the party authorizes to claim the privilege. A neutral
15       person conducting the proceeding shall not be subject to process requir-
16       ing the disclosure of any matter discussed within the proceedings unless
17       all parties consent to a waiver.
18           (b) The confidentiality and privilege requirements of this section shall
19       not apply to:
20           (1) Information that is reasonably necessary to allow investigation of
21       or action for ethical violations against the neutral person conducting the
22       proceeding or for the defense of the neutral person or staff of an approved
23       program conducting the proceeding in an action against the neutral per-
24       son or staff of an approved program if the action is filed by a party to the
25       proceeding;
26           (2) any information that the mediator is required to report under
27       K.S.A. 38-1522 and amendments thereto;
28           (3) any information that is reasonably necessary to stop the commis-
29       sion of an ongoing crime or fraud or to prevent the commission of a crime
30       or fraud in the future for which there was an expressed intent to commit
31       such crime or fraud;
32           (4) any information that the mediator is required to report or com-
33       municate under the specific provisions of any statute or in order to comply
34       with orders of the court; or
35           (5) a report to the court of threats of physical violence made by a
36       party during the proceeding.
37           Sec. 3. K.S.A. 1997 Supp. 44-817 is hereby amended to read as fol-
38       lows: 44-817. (a) The secretary of human resources shall have power to
39       appoint any competent, impartial, disinterested person to act as mediator
40       in any labor dispute either upon the secretary's own initiative or upon the
41       request of one of the parties to the dispute. It shall be the function of
42       such mediator to bring the parties together voluntarily under such favor-
43       able auspices as will tend to effectuate settlement of the dispute, but

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  1       neither the mediator nor the secretary of human resources shall have any
  2       power of compulsion in mediation proceedings. The secretary of human
  3       resources shall provide necessary expenses for such mediators as may be
  4       appointed, under reasonable compensation not exceeding $50 per day for
  5       each such mediator, and prescribe reasonable rules of procedure for such
  6       mediators.
  7           (b) All verbal or written information transmitted between any party
  8       to a dispute and a mediator conducting the proceeding, or the staff of an
  9       approved program under K.S.A. 5-501 et seq. and amendments thereto
10       shall be confidential communications. No admission, representation or
11       statement made in the proceeding shall be admissible as evidence or
12       subject to discovery. A mediator shall not be subject to process requiring
13       the disclosure of any matter discussed during the proceedings unless all
14       the parties consent to a waiver. Any party, including the neutral person
15       or staff of an approved program conducting the proceeding, participating
16       in the proceeding has a privilege in any action to refuse to disclose, and
17       to prevent a witness from disclosing, any communication made in the
18       course of the proceeding. The privilege may be claimed by the party or
19       anyone the party authorizes to claim the privilege.
20           (c) The confidentiality and privilege requirements of this section shall
21       not apply to:
22           (1) Information that is reasonably necessary to establish a defense for
23       the mediator or staff of an approved program conducting the proceeding
24       in the case of an action against the mediator or staff of an approved
25       program that is filed by a party to the mediation;
26           (2) any information that the mediator is required to report under
27       K.S.A. 38-1522 and amendments thereto;
28           (3) any information that is reasonably necessary to stop the commis-
29       sion of an ongoing crime or fraud or to prevent the commission of a crime
30       or fraud in the future for which there was an expressed intent to commit
31       such crime or fraud; or
32           (4) any information that the mediator is required to report or com-
33       municate under the specific provisions of any statute or in order to comply
34       with orders of the court.
35           Sec. 4. K.S.A. 1997 Supp. 60-452a is hereby amended to read as
36       follows: 60-452a. (a) All verbal or written information transmitted be-
37       tween any party to a dispute and a neutral person conducting the pro-
38       ceeding, or the staff of an approved program under K.S.A. 5-501 et seq.
39       and amendments thereto shall be confidential communications. No ad-
40       mission, representation or statement made in the proceeding shall be
41       admissible as evidence or subject to discovery. A neutral person shall not
42       be subject to process requiring the disclosure of any matter discussed
43       during the proceedings unless all the parties consent to a waiver. Any

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  1       party, including the neutral person or staff of an approved program con-
  2       ducting the proceeding, participating in the proceeding has a privilege in
  3       any action to refuse to disclose, and to prevent a witness from disclosing,
  4       any communication made in the course of the proceeding. The privilege
  5       may be claimed by the party or anyone the party authorizes to claim the
  6       privilege.
  7           (b) The confidentiality and privilege requirements of this section shall
  8       not apply to:
  9           (1) Information that is reasonably necessary to establish a defense for
10       the neutral person or staff of an approved program conducting the pro-
11       ceeding in the case of an action against the neutral person or staff of an
12       approved program that is filed by a party to the mediation;
13           (2) any information that the neutral person is required to report un-
14       der K.S.A. 38-1522 and amendments thereto;
15           (3) any information that is reasonably necessary to stop the commis-
16       sion of an ongoing crime or fraud or to prevent the commission of a crime
17       or fraud in the future for which there was an expressed intent to commit
18       such crime or fraud; or
19           (4) any information that the neutral person is required to report or
20       communicate under the specific provisions of any statute or in order to
21       comply with orders of the court.
22           Sec. 5. K.S.A. 1997 Supp. 72-5427 is hereby amended to read as
23       follows: 72-5427. (a) Upon finding that an impasse exists in professional
24       negotiation or upon receipt of a joint notice of the existence of impasse
25       filed by the parties under subsection (d) of K.S.A. 72-5426 and amend-
26       ments thereto, the secretary shall appoint a mediator to assist in resolving
27       the impasse, from a list maintained by the secretary of qualified and im-
28       partial individuals who are representative of the public. To the extent
29       practicable, the secretary shall utilize the services of the federal mediation
30       and conciliation service for mediation under this section.
31           (b) The mediator shall meet with the parties or their representatives,
32       or both, either jointly or separately, and shall take such other steps as
33       appropriate in order to assist the parties to resolve the impasse and to
34       proceed with professional negotiation.
35           (c) If either party determines, after the seven-day period immediately
36       succeeding the appointment of the mediator, that mediation has failed to
37       resolve the impasse, such party may within 10 days after the unsuccessful
38       conclusion of mediation file a written request with the secretary to ap-
39       point a fact-finding board to assist in resolving the impasse and the sec-
40       retary shall immediately notify the other party of the request. Within
41       three days thereafter, each of the parties shall prepare and submit to the
42       secretary a written memorandum containing a description of the issues
43       upon which the impasse exists and shall include therein a specific de-

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  1       scription of the final position of the party on each issue.
  2           (d) All verbal or written information transmitted between any party
  3       to a dispute and a mediator conducting the proceeding, or the staff of an
  4       approved program under K.S.A. 5-501 et seq. and amendments thereto
  5       shall be confidential communications. No admission, representation or
  6       statement made in the proceeding shall be admissible as evidence or
  7       subject to discovery. A mediator shall not be subject to process requiring
  8       the disclosure of any matter discussed during the proceedings unless all
  9       the parties consent to a waiver. Any party, including the neutral person
10       or staff of an approved program conducting the proceeding, participating
11       in the proceeding has a privilege in any action to refuse to disclose, and
12       to prevent a witness from disclosing, any communication made in the
13       course of the proceeding. The privilege may be claimed by the party or
14       anyone the party authorizes to claim the privilege.
15           (e) The confidentiality and privilege requirements of this section shall
16       not apply to:
17           (1) Information that is reasonably necessary to establish a defense for
18       the mediator or staff of an approved program conducting the proceeding
19       in the case of an action against the mediator or staff of an approved
20       program that is filed by a party to the mediation;
21           (2) any information that the mediator is required to report under
22       K.S.A. 38-1522 and amendments thereto;
23           (3) any information that is reasonably necessary to stop the commis-
24       sion of an ongoing crime or fraud or to prevent the commission of a crime
25       or fraud in the future for which there was an expressed intent to commit
26       such crime or fraud; or
27           (4) any information that the mediator is required to report or com-
28       municate under the specific provisions of any statute or in order to comply
29       with orders of the court.
30           Sec. 6. K.S.A. 75-4332 is hereby amended to read as follows: 75-
31       4332. (a) Public employers may include in memoranda of agreement con-
32       cluded with recognized employee organizations a provision setting forth
33       the procedures to be invoked in the event of disputes which reach an
34       impasse in the course of meet and confer proceedings. Such memoran-
35       dum shall define conditions under which an impasse exists, and if the
36       employer is bound by the budget law set forth in K.S.A. 79-2925 et seq.
37       and amendments thereto, the memorandum shall provide that an impasse
38       is deemed to exist if the parties fail to achieve agreement at least 14 days
39       prior to budget submission date.
40           (b) In the absence of such memorandum of procedures, or upon the
41       failure of such procedures resulting in an impasse, either party may re-
42       quest the assistance of the public employee relations board, or the board
43       may render such assistance on its own motion. In either event, if the

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  1       board determines an impasse exists in meet and confer proceedings be-
  2       tween a public employer and a recognized employee organization, the
  3       board shall aid the parties in effecting a voluntary resolution of the dis-
  4       pute, and request the appointment of a mediator or mediators, represen-
  5       tative of the public, from a list of qualified persons maintained by the
  6       secretary of human resources, and such appointment of a mediator or
  7       mediators shall be made forthwith by the secretary.
  8           (c) All verbal or written information transmitted between any party
  9       to a dispute and a mediator conducting the proceeding, or the staff of an
10       approved program under K.S.A. 5-501 et seq. and amendments thereto
11       shall be confidential communications. No admission, representation or
12       statement made in the proceeding shall be admissible as evidence or
13       subject to discovery. A mediator shall not be subject to process requiring
14       the disclosure of any matter discussed during the proceedings unless all
15       the parties consent to a waiver. Any party, including the neutral person
16       or staff of an approved program conducting the proceeding, participating
17       in the proceeding has a privilege in any action to refuse to disclose, and
18       to prevent a witness from disclosing, any communication made in the
19       course of the proceeding. The privilege may be claimed by the party or
20       anyone the party authorizes to claim the privilege.
21           (d) The confidentiality and privilege requirements of this section shall
22       not apply to:
23           (1) Information that is reasonably necessary to establish a defense for
24       the mediator or staff of an approved program conducting the proceeding
25       in the case of an action against the mediator or staff of an approved
26       program that is filed by a party to the mediation;
27           (2) any information that the mediator is required to report under
28       K.S.A. 38-1522 and amendments thereto;
29           (3) any information that is reasonably necessary to stop the commis-
30       sion of an ongoing crime or fraud or to prevent the commission of a crime
31       or fraud in the future for which there was an expressed intent to commit
32       such crime or fraud; or
33           (4) any information that the mediator is required to report or com-
34       municate under the specific provisions of any statute or in order to comply
35       with orders of the court.
36           (e) If the impasse persists seven days after the mediators have been
37       appointed, the board shall request the appointment of a fact-finding
38       board of not more than three members, each representative of the public,
39       from a list of qualified persons maintained by the secretary of human
40       resources. The fact-finding board shall conduct a hearing, may administer
41       oaths, and may request the board to issue subpoenas. It shall make written
42       findings of facts and recommendations for resolution of the dispute and,
43       not later than 21 days from the day of appointment, shall serve such

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  1       findings on the public employer and the recognized employee organiza-
  2       tion. The board may make this report public seven days after it is sub-
  3       mitted to the parties. If the dispute continues 14 days after the report is
  4       submitted to the parties, the report shall be made public.
  5           (f) If the parties have not resolved the impasse by the end of a
  6       forty-day period, commencing with the appointment of the fact-finding
  7       board, or by a date not later than 14 days prior to the budget submission
  8       date, whichever date occurs first: (1) The representative of the public
  9       employer involved shall submit to the governing body of the public em-
10       ployer involved a copy of the findings of fact and recommendations of
11       the fact-finding board, together with the representative's recommenda-
12       tions for settling the dispute; (2) the employee organization may submit
13       to such governing body its recommendations for settling the dispute; (3)
14       the governing body or a duly authorized committee thereof shall forthwith
15       conduct a hearing at which the parties shall be required to explain their
16       positions; and (4) thereafter, the governing body shall take such action as
17       it deems to be in the public interest, including the interest of the public
18       employees involved. The provisions of this subsection shall not be appli-
19       cable to the state and its agencies and employees.
20           (g) The cost for the mediation and fact-finding services provided by
21       the secretary of human resources upon request of the board shall be
22       borne by the secretary of human resources. All other costs, including that
23       of a neutral arbitrator, shall be borne equally by the parties to a dispute.
24           Sec. 7. K.S.A. 75-4332 and K.S.A. 1997 Supp. 5-512, 23-605, 44-817,
25       60-452a and 72-5427 are hereby repealed.
26           Sec. 8. This act shall take effect and be in force from and after its
27       publication in the statute book.
28