An Act concerning mediation; relating to confidentiality; amending K.S.A. 23-605, 44-817, 60-452a, 72-5427, 74-545 and 75-4332 and K.S.A. 1995 Supp. 5-512 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 1995 Supp. 5-512 is hereby amended to read as follows: 5-512. (a) All verbal or written information transmitted between any party to a dispute and a mediator neutral person conducting a pro- ceeding under this act, or the staff of an approved center program shall be confidential communications. Mediation proceedings shall be re- garded as settlement negotiations, and no No admission, representation or statement made in mediation the proceeding shall be admissible as evidence or subject to discovery. A mediator neutral person conducting a proceeding under this act shall not be subject to process requiring the disclosure of any matter discussed during mediation the proceedings un- less all the parties consent to a waiver. Any party, including the neutral person conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege.

(b) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to establish a defense for the mediator or center neutral person or staff of an approved program conducting the proceeding in the case of an action against the mediator or the center neutral person or staff of an approved program that is filed by a party to the mediation proceeding;

(2) any information that the mediator person conducting the pro- ceeding is required to report under K.S.A. 38-1522, and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud; or

(4) any information that the mediator person conducting the pro- ceeding is required to report or communicate under the specific provi- sions of any statute or in order to comply with orders of a court.

Sec. 2. K.S.A. 23-605 is hereby amended to read as follows: 23-605. (a) A mediator appointed under K.S.A. 23-602 and amendments thereto shall treat all information obtained from and about the participants through the mediation process as confidential and shall not disclose any such information except as necessary for the conduct of the mediation or as required by law. verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq. and amendments thereto as confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or sub- ject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party, including the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege. A neutral person conducting the proceeding shall not be subject to process requiring the disclosure of any matter discussed within the proceedings unless all parties consent to a waiver.

(b) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to allow investigation of or action for ethical violations against the neutral person conducting the proceeding or for the defense of the neutral person or staff of an approved program conducting the proceeding in an action against the neutral per- son or staff of an approved program if the action is filed by a party to the proceeding;

(2) any information that the mediator is required to report under K.S.A. 38-1522 and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud;

(4) any information that the mediator is required to report or com- municate under the specific provisions of any statute or in order to comply with orders of the court; or

(5) a report to the court of threats of physical violence made by a party during the proceeding.

Sec. 3. K.S.A. 44-817 is hereby amended to read as follows: 44-817. (a) The secretary of human resources shall have power to appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon his or her the secretary's own initiative or upon the request of one of the parties to the dispute. It shall be the function of such mediator to bring the parties together voluntarily under such favor- able auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the secretary of human resources shall have any power of compulsion in mediation proceedings. The secretary of human resources shall provide necessary expenses for such mediators as may be appointed, under reasonable compensation not exceeding fifty dollars ($50) $50 per day for each such mediator, and prescribe reasonable rules of procedure for such mediators.

(b) All verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq. and amendments thereto shall be confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or sub- ject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party, including the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege.

(c) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to establish a defense for the mediator or staff of an approved program conducting the proceeding in the case of an action against the mediator or staff of an approved program that is filed by a party to the mediation;

(2) any information that the mediator is required to report under K.S.A. 38-1522 and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud; or

(4) any information that the mediator is required to report or com- municate under the specific provisions of any statute or in order to comply with orders of the court.

Sec. 4. K.S.A. 60-452a is hereby amended to read as follows: 60- 452a. (a) If parties to a dispute agree to submit their dispute to any forum for mediation, conciliation or arbitration and all parties so agree in writing, no person who serves as mediator, conciliator or arbitrator nor that per- son's agent may be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation, conciliation or arbitration.

(b) The provisions of this section shall not apply to mediation, con- ciliation or arbitration in employer-employee disputes or negotiations. All verbal or written information transmitted between any party to a dispute and a neutral person conducting the proceeding, or the staff of an ap- proved program under K.S.A. 5-501 et seq. and amendments thereto shall be confidential communications. No admission, representation or state- ment made in the proceeding shall be admissible as evidence or subject to discovery. A neutral person shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party, including the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege.

(b) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to establish a defense for the neutral person or staff of an approved program conducting the pro- ceeding in the case of an action against the neutral person or staff of an approved program that is filed by a party to the mediation;

(2) any information that the neutral person is required to report un- der K.S.A. 38-1522 and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud; or

(4) any information that the neutral person is required to report or communicate under the specific provisions of any statute or in order to comply with orders of the court.

Sec. 5. K.S.A. 72-5427 is hereby amended to read as follows: 72- 5427. (a) Upon finding that an impasse exists in professional negotiation or upon receipt of a joint notice of the existence of impasse filed by the parties under subsection (d) of K.S.A. 72-5426 and amendments thereto, the secretary shall appoint forthwith a mediator to assist in resolving the impasse, from a list maintained by the secretary of qualified and impartial individuals who are representative of the public. To the extent practicable, the secretary shall utilize the services of the federal mediation and con- ciliation service for mediation under this section.

(b) The mediator shall meet with the parties or their representatives, or both, either jointly or separately, and shall take such other steps as appropriate in order to assist the parties to resolve the impasse and to proceed with professional negotiation.

(c) If either party determines, after the seven-day period immediately succeeding the appointment of the mediator, that mediation has failed to resolve the impasse, such party may within ten 10 days after the unsuc- cessful conclusion of mediation file a written request with the secretary to appoint a fact-finding board to assist in resolving the impasse and the secretary shall immediately notify the other party of the request. Within three (3) days thereafter, each of the parties shall prepare and submit to the secretary a written memorandum containing a description of the is- sues upon which the impasse exists and shall include therein a specific description of the final position of the party on each issue.

(d) All verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq. and amendments thereto shall be confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or sub- ject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party, including the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege.

(e) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to establish a defense for the mediator or staff of an approved program conducting the proceeding in the case of an action against the mediator or staff of an approved program that is filed by a party to the mediation;

(2) any information that the mediator is required to report under K.S.A. 38-1522 and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud; or

(4) any information that the mediator is required to report or com- municate under the specific provisions of any statute or in order to comply with orders of the court.

Sec. 6. K.S.A. 74-545 is hereby amended to read as follows: 74-545. (a) The secretary of the state board of agriculture with the cooperation of the director of extension of Kansas state university shall coordinate a farm assistance, counseling and training referral program which shall in- clude a rural opportunity program. The rural opportunity program will gather information and will inform rural communities, businesses, and potential entrepreneurs of available programs, resources, and strategies which they can use to develop themselves economically and create alter- native or improved employment for farmers and rural residents. For the purposes of providing such assistance and program, the secretary shall utilize the services of the director and division of extension of Kansas state university, other state agencies, county extension personnel, munic- ipal and community services organizations, private foundations, institutes, and personnel and private business and professional agencies or services available for such purpose. The secretary shall compile a directory of programs and services which may be utilized in providing the assistance contemplated by this act. Staff required by the secretary for the purposes of implementing this act shall be employed by the secretary with the approval of the director of extension and shall serve in the offices of the division of extension at Kansas state university. Personnel employed by the secretary for the purpose of implementing this act shall be employed as special project employees and shall be in the unclassified service under the Kansas civil service act. The personnel employed by the secretary for this purpose and county extension personnel shall be utilized in: (1) Re- ceiving requests for assistance; (2) determining the eligibility of persons requesting assistance; and (3) determining if such assistance can best be provided by staff or by referral to an appropriate public or private agency or party for direct assistance. Personnel receiving requests for assistance will provide where possible such assistance or refer the person requesting such assistance to a public or private agency or, when appropriate, to a person qualified to provide such assistance in the home community or county of the person requesting such assistance.

(b) Persons requesting farm assistance, counseling and training re- ferral services shall be eligible to receive assistance pursuant to this act if they: (1) Are primarily engaged in the business of farming, ranching, agribusiness or other agriculture-related activities; and (2) will be unable to continue in such business or activity or be seriously handicapped in such continued operation without the assistance provided pursuant to this act.

(c) The assistance to be made available to eligible persons requesting farm assistance, counseling and training referral services by staff, by con- tract or by referral to appropriate persons or agencies shall include farm management, legal assistance, legal advice and referrals, financial plan- ning, employment services, business planning, voluntary mediation and personal and family support counseling. The secretary may provide legal assistance through a contract for legal services with any private or cor- porate law firm.

(d) Meetings in which mediation assistance is provided through the voluntary mediation service authorized under subsection (c) shall be closed and shall not be subject to the provisions of K.S.A. 75-4317 to 75- 4320, inclusive, and amendments thereto. The record of information re- lating to the finances of individual borrowers and creditors created, col- lected and maintained by the mediation service shall not constitute a public record and shall not be open for inspection under the open records act. Mediation sessions shall be confidential and the secretary shall ensure that all lenders and borrowers of agricultural loans receive adequate no- tification of the mediation service.

(e) All verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq. and amendments thereto shall be confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or sub- ject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party, including the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege.

(f) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to establish a defense for the mediator or staff of an approved program conducting the proceeding in the case of an action against the mediator or staff of an approved program that is filed by a party to the mediation;

(2) any information that the mediator is required to report under K.S.A. 38-1522 and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud; or

(4) any information that the mediator is required to report or com- municate under the specific provisions of any statute or in order to comply with orders of the court.

(e) (g) The secretary is hereby authorized to negotiate and enter into contracts for the performance of the powers, duties and functions of the program established under this section and under K.S.A. 74-544, and amendments thereto. All such contracts shall be exempt from the com- petitive bid requirements of K.S.A. 75-3739, and amendments thereto.

(f) (h) The secretary is hereby authorized to receive grants, gifts or donations from the United States government, or its agencies, or any other source whatsoever for the purposes of the program established un- der this section and under K.S.A. 74-544, and amendments thereto, and any moneys so received shall be deposited in the state treasury and cred- ited to the FACTS gifts and contributions fund which is hereby created. All expenditures from such fund shall be made in accordance with ap- propriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary of the state board of agriculture or a person designated by the secretary.

(g) (i) A creditor of a farm borrower, when notifying a farm borrower of intent to accelerate or call such note or, in the event none of the above notices has occurred, before filing suit to foreclose on a deed of trust or mortgage on agricultural land, shall notify the borrower of the availability of the mediation service as contracted by the secretary, and shall prom- inently include on or with the notice the address and telephone number of such mediation service unless the borrower and creditor have previ- ously been involved with each other in mediation through such mediation service. A copy of the notice, including names, addresses and phone num- bers of creditor and borrower, shall be sent to the mediation service at the same time it is mailed to the borrower, if the borrower consents thereto in writing.

(h) (j) The provisions of this act shall expire on September 30, 1996.

Sec. 7. K.S.A. 75-4332 is hereby amended to read as follows: 75- 4332. (a) Public employers may include in memoranda of agreement con- cluded with recognized employee organizations a provision setting forth the procedures to be invoked in the event of disputes which reach an impasse in the course of meet and confer proceedings. Such memoran- dum shall define conditions under which an impasse exists, and if the employer is bound by the budget law set forth in K.S.A. 79-2925 et seq., and amendments thereto, the memorandum shall provide that an impasse is deemed to exist if the parties fail to achieve agreement at least fourteen (14) 14 days prior to budget submission date.

(b) In the absence of such memorandum of procedures, or upon the failure of such procedures resulting in an impasse, either party may re- quest the assistance of the public employee relations board, or the board may render such assistance on its own motion. In either event, if the board determines an impasse exists in meet and confer proceedings be- tween a public employer and a recognized employee organization, the board shall aid the parties in effecting a voluntary resolution of the dis- pute, and request the appointment of a mediator or mediators, represen- tative of the public, from a list of qualified persons maintained by the secretary of human resources, and such appointment of a mediator or mediators shall be made forthwith by the secretary.

(c) All verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq. and amendments thereto shall be confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or sub- ject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party, including the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or anyone the party authorizes to claim the privilege.

(d) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to establish a defense for the mediator or staff of an approved program conducting the proceeding in the case of an action against the mediator or staff of an approved program that is filed by a party to the mediation;

(2) any information that the mediator is required to report under K.S.A. 38-1522 and amendments thereto;

(3) any information that is reasonably necessary to stop the commis- sion of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud; or

(4) any information that the mediator is required to report or com- municate under the specific provisions of any statute or in order to comply with orders of the court.

(c) (e) If the impasse persists seven (7) days after the mediators have been appointed, the board shall request the appointment of a fact-finding board of not more than three (3) members, each representative of the public, from a list of qualified persons maintained by the secretary of human resources. The fact-finding board shall conduct a hearing, may administer oaths, and may request the board to issue subpoenas. It shall make written findings of facts and recommendations for resolution of the dispute and, not later than twenty-one (21) 21 days from the day of ap- pointment, shall serve such findings on the public employer and the rec- ognized employee organization. The board may make this report public seven (7) days after it is submitted to the parties. If the dispute continues fourteen (14) 14 days after the report is submitted to the parties, the report shall be made public.

(d) (f) If the parties have not resolved the impasse by the end of a forty-day period, commencing with the appointment of the fact-finding board, or by a date not later than fourteen (14) 14 days prior to the budget submission date, whichever date occurs first: (1) The representative of the public employer involved shall submit to the governing body of the public employer involved a copy of the findings of fact and recommen- dations of the fact-finding board, together with his or her the represen- tative's recommendations for settling the dispute; (2) the employee or- ganization may submit to such governing body its recommendations for settling the dispute; (3) the governing body or a duly authorized com- mittee thereof shall forthwith conduct a hearing at which the parties shall be required to explain their positions; and (4) thereafter, the governing body shall take such action as it deems to be in the public interest, in- cluding the interest of the public employees involved. The provisions of this subsection shall not be applicable to the state and its agencies and employees.

(e) (g) The cost for the mediation and fact-finding services provided by the secretary of human resources upon request of the board shall be borne by the secretary of human resources. All other costs, including that of a neutral arbitrator, shall be borne equally by the parties to a dispute.

Sec. 8. K.S.A. 23-605, 44-817, 60-452a, 72-5427, 74-545 and 75-4332 and K.S.A. 1995 Supp. 5-512 are hereby repealed.

Sec. 9. This act shall take effect and be in force from and after its publication in the statute book.

Approved April 4, 1996.