An Act concerning dispute resolution; amending K.S.A. 1995 Supp. 5-501, 5-502, 5-503, 5-504, 5-505, 5-506, 5-507, 5-508, 5-509, 5-510, 5-511, 5-512, 5-513, 5-515, 5-516 and 5-517 and repealing the existing sections.

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

Section 1. K.S.A. 1995 Supp. 5-501 is hereby amended to read as follows: 5-501. (a) K.S.A. 1995 Supp. 5-501 through 5-516, and amend- ments thereto, shall be known and may be cited as the dispute resolution act.

(b) The dispute resolution act shall apply only to approved centers, including the governing board members and the mediators and other personnel of approved centers, whether or not such persons are com- pensated, and to the parties to disputes accepted for dispute resolution at approved centers registered and approved programs and individuals, and personnel thereof, to parties to dispute resolution being conducted by registered programs and individuals, and to disputes referred by a court to dispute resolution other than litigation. The dispute resolution act shall not apply to any judge acting in an official capacity.

Sec. 2. K.S.A. 1995 Supp. 5-502 is hereby amended to read as fol- lows: 5-502. As used in the dispute resolution act:

(a) ``Approved center'' means a center that has applied for and re- ceived approval from the director under K.S.A. 1995 Supp. 5-507, and amendments thereto; ``Registered programs'' and ``registered individuals'' refer to those programs and individuals who have registered with the director of dispute resolution and are eligible to apply for public funding or approval from the director of dispute resolution;

(b) ``center'' means any entity or program which makes dispute res- olution procedures available, other than a dispute resolution program operated by the judicial branch. An entity or program which merely co- ordinates or cooperates with the judicial branch shall not be considered to be operated by the judicial branch; ``approval'' means the program or individual has applied for inclusion on a list of programs and individuals and has been found to have met the requirements and guidelines to be considered for the receipt of public funding or to be recommended to the court as an approved service provider.

(c) ``council'' means the advisory council on dispute resolution;

(d) ``director'' means the director of the office of dispute resolution;

(e) ``dispute resolution process'' means a process by which the parties involved in a dispute voluntarily agree or are referred or ordered by a court to enter into informal discussion and negotiation with the assistance of a mediator neutral person;

(f) ``mediation'' means the intervention into a dispute by a third party who has no decision making authority and , is impartial to the issues being discussed, assists the parties in defining the issues in dispute, facilitates communication between the parties and assists the parties in reaching resolution; and

(g) ``mediator'' means a person trained in the process of mediation who assists parties in dispute to reach a mutually acceptable resolution of their conflict. ``arbitration'' means a proceeding in which a neutral person or panel hears a formal case presentation and makes an award, which can be binding or nonbinding upon the parties relative to a prior agreement;

(h) ``neutral evaluation'' means a proceeding conducted by a neutral person who helps facilitate settlement of a case by giving the parties to the dispute an evaluation of the case;

(i) ``summary jury trial'' means a formal case presentation to a jury and judge which results in a nonbinding decision;

(j) ``mini trial'' means a formal case presentation to a party represen- tative and an expert neutral person who makes a nonbinding decision;

(k) ``settlement'' means a proceeding in which someone other than the presiding judge assists the parties in reaching a resolution;

(l) ``conciliation'' means a proceeding in which a neutral person assists the parties in reconciliation efforts;

(m) ``neutral person'' or ``neutral'' means the impartial third party who intervenes in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute.

Sec. 3. K.S.A. 1995 Supp. 5-503 is hereby amended to read as fol- lows: 5-503. The office of dispute resolution is hereby established in the office of the judicial administrator. The director of dispute resolution shall be appointed by the judicial administrator and work for the office of judicial administration. The director of the office dispute resolution shall be in the unclassified service under the Kansas civil service act and shall be appointed by the judicial administrator. The director may be but is not required to be an attorney and shall be selected for appointment on the basis of the individual's training and experience in mediation dispute resolution. The director shall administer the dispute resolution act and shall provide administrative and clerical assistance to the council. If the person appointed as director is an attorney, such person shall devote full time to the duties of the office of director and shall not engage in the private practice of any profession law during the period such person serves as director.

Sec. 4. K.S.A. 1995 Supp. 5-504 is hereby amended to read as fol- lows: 5-504. (a) The advisory council on dispute resolution is hereby cre- ated. The council shall be comprised of individuals from a variety of dis- ciplines who are trained and knowledgeable in mediation dispute resolution and shall be selected to be representative of the geographical and cultural diversity of the state and to reflect balanced gender repre- sentation. The council shall consist of 11 no more than 19 voting members appointed by the chief justice of the supreme court. The voting members shall include not more than one district judge, not more than one district magistrate judge, and not more than one other person who is six persons who are licensed to practice law in Kansas. The council shall be appointed by the chief justice of the supreme court in accordance with this section. The chief justice shall solicit nominations from Kansas judges, mediation dispute resolution organizations, legal and mental health professional or- ganizations, social and legal services agencies, domestic violence advocacy groups, state and local government agencies, business organizations, con- sumer organizations, court service officers, social workers, mental health professionals, educators and other interested groups or individuals. The chief justice is not restricted to the solicited lists of nominees in making such appointments. Two nonvoting, exofficio members of the council shall be appointed by the council from among representatives of the ap- proved centers.

(b) The initial members of the council shall be appointed for terms of one, two or three years so that the terms of not more than four voting members shall expire during the same calendar year. All successor ap- pointments shall be made for terms of three years. Any vacancy on the council shall be filled in the same manner in which the original appoint- ment was made and for the duration of the term vacated. Appointments to the council shall be made within 90 days after July 1, 1994.

(c) The council annually shall elect a chairperson, a vice-chairperson and such other officers as deemed necessary by the council.

Sec. 5. K.S.A. 1995 Supp. 5-505 is hereby amended to read as fol- lows: 5-505. (a) The council shall:

(1) Advise the director on the administration of the dispute resolution act and on policy development therefor;

(2) assist the director in providing technical assistance to centers pro- grams, individuals and other entities, including courts, requesting the study and development of dispute resolution programs;

(3) consult with appropriate and necessary state agencies and offices to promote a cooperative and comprehensive implementation of this the dispute resolution act;

(4) advise the director with respect to the awarding of grants to ap- proved centers or any other financial assistance program which is admin- istered under this the dispute resolution act;

(5) advise the director with respect to applications submitted by cen- ters and other entities programs and individuals for approval under K.S.A. 1995 Supp. 5-507, and amendments thereto, as approved centers;

(6) assist the director with the review, supervision and evaluation of dispute resolution programs of approved centers; and

(7) make recommendations to the director pertaining to legislation affecting dispute resolution.

(b) The council shall meet at least four times per year and at other times deemed necessary to perform its functions. Members of the council attending meetings of the council or attending a subcommittee meeting thereof authorized by the council shall receive amounts provided for in subsection (e) of K.S.A. 75-3223 and amendments thereto.

(c) The council may appoint subcommittees of the council and task forces to carry out its work. Subcommittee and task force members shall have knowledge of, responsibility for, or interest in an area related to the duties of the council assigned to the subcommittee or task force.

Sec. 6. K.S.A. 1995 Supp. 5-506 is hereby amended to read as fol- lows: 5-506. (a) Consistent with provisions of the dispute resolution act and the rules of the supreme court adopted pursuant to the dispute res- olution act, and in consultation with the council, the director shall:

(1) Make information on the formation of centers dispute resolution available throughout the state and encourage the formation of centers development of new programs;

(2) approve centers programs and individuals which meet require- ments and guidelines for approval which are prescribed by this the dispute resolution act or by rules of the supreme court adopted pursuant to the dispute resolution act;

(3) develop and administer a uniform system of reporting and col- lecting statistical data from approved centers programs and individuals;

(4) develop and administer a uniform system of evaluating approved centers programs and individuals for compliance with the requirements of the dispute resolution act and the rules of the supreme court adopted pursuant to the dispute resolution act;

(5) prepare an annual budget for the implementation and adminis- tration of the dispute resolution act and disburse funds to approved cen- ters programs and individuals;

(6) develop guidelines for a sliding scale of fees that may be charged by approved centers programs and individuals;

(7) develop and approve curricula and initiate training sessions for mediators neutral persons and staff of approved centers registered pro- grams, registered individuals and of courts, including continuing educa- tion programs;

(8) establish and approve volunteer training and continuing education programs;

(9) promote public awareness of the dispute resolution process;

(10) apply for and receive funds from public and private sources for carrying out the purposes and objectives of the dispute resolution act; and

(11) provide technical assistance to centers any program, individual

and other entities, including courts, requesting the study and develop- ment of dispute resolution programs.

(b) The director shall report annually to the supreme court, the gov- ernor and the legislature on the implementation of the dispute resolution act. The report shall include the number and types of disputes received, the disposition of the disputes, any problems encountered, any recom- mendations to address problems and a comparison of the cost of medi- ation and litigation, but not be limited to, information on types of disputes being handled by registered programs and registered individuals, rec- ommendations to address problems, recommendations for program de- velopment, statistics concerning numbers and resolutions of disputes, when available, and any other information available which is relevant to achieving the goals of the dispute resolution act.

Sec. 7. K.S.A. 1995 Supp. 5-507 is hereby amended to read as fol- lows: 5-507. (a) A center or an entity proposing to establish a center A program or individual not connected with a court and desiring approval may apply to the director for approval to participate in the dispute res- olution process to be approved under the dispute resolution act by sub- mitting an application which includes:

(1) A plan for the operation of the center program or service;

(2) the center's program or individual's objectives;

(3) the areas of population to be served;

(4) the administrative organization of the center program or service;

(5) recordkeeping procedures;

(6) the procedures for client intake and for scheduling, conducting and terminating dispute resolution sessions;

(7) qualifications for mediators for the center neutral persons for the program;

(8) an annual budget for the center program; and

(9) such additional criteria for approval or for grants which are pre- scribed by the director in accordance with the dispute resolution act or by rules of the supreme court adopted pursuant to the dispute resolution act.

(b) The director shall approve or disapprove each application sub- mitted for approval under this section by the end of the second meeting of the advisory council occurring after the date the application was sub- mitted.

(c) Each approved center program shall submit an annual report to the director. The reports shall include the number and types of cases handled in the year and a showing of continued compliance with the dispute resolution act.

(d) Any entities, programs or individuals providing mediation pro- grams dispute resolution services and existing on July 1, 1994, shall not be included as approved centers under the dispute resolution act unless such entities apply and are approved under this section.

Sec. 8. K.S.A. 1995 Supp. 5-508 is hereby amended to read as fol- lows: 5-508. An approved center program or individual may use sources of funds, both public and private, in addition to funds appropriated by the legislature. An approved center program or individual may require each party to pay a fee to help defray costs based upon ability to pay. A person shall not be denied mediation services solely because of an ina- bility to pay the applicable fee. Each approved program or individual shall have a sliding scale system for assessing fees.

Sec. 9. K.S.A. 1995 Supp. 5-509 is hereby amended to read as fol- lows: 5-509. (a) The following types of cases may be accepted for dispute resolution at by an approved center program or individual:

(1) Civil claims and disputes, including, but not limited to, consumer and commercial complaints, disputes involving allegations of shoplifting, disputes between neighbors, disputes between business associates, dis- putes between landlords and tenants, disputes involving matters under the small claims procedure act, farmer-lender disputes, and disputes within communities;

(2) disputes concerning child custody and visitation rights and other areas of domestic relations;

(3) juvenile offenses and disputes involving juveniles;

(4) disputes between victims and offenders, in which the victims vol- untarily agree to participate in mediation;

(5) disputes involving allegations of unlawful discrimination under state or federal laws;

(6) disputes referred by county attorneys or district attorneys;

(7) disputes involving employer and employee relations under K.S.A. 72-5413 through 72-5432, and amendments thereto, or K.S.A. 75-4321 through 75-4337, and amendments thereto; and

(8) disputes referred by a court, an attorney, a law enforcement of- ficer, a social service agency, a school or any other interested person or agency, including the request of the parties involved.

(b) A case may be referred prior to the commencement of formal judicial proceedings or may be referred as a pending court case. If a court refers a case to an approved center, the center shall provide, information shall be provided to the court as to whether an agreement was reached and, if the court requests a copy of the agreement, the center shall provide such copy available, a copy of the signed agreement shall be provided to the court.

(c) Before the dispute resolution process begins, an approved center the neutral person conducting the process shall provide the parties with a written statement setting forth the procedures to be followed.

Sec. 10. K.S.A. 1995 Supp. 5-510 is hereby amended to read as fol- lows: 5-510. (a) After reviewing the recommendations of the advisory council on dispute resolution, the supreme court shall adopt rules which establish standards for training and qualifications for mediators of ap- proved centers neutral persons and which prescribe procedures for reg- istration and approval by the director of training for mediators of neutral persons in accordance with such standards. Training for mediators shall include the study of conflict resolution techniques, neutrality, agreement writing and ethics. All mediators of approved centers approved programs and individuals shall satisfy the standards for training and qualifications established by rules of the supreme court.

(b) Mediators of approved centers Registered and approved pro- grams and individuals shall comply with the ethics requirements and standards and the annual continuing education requirements which are prescribed by the director in accordance with the dispute resolution act or by rules of the supreme court adopted pursuant to the dispute reso- lution act.

(c) An approved center may provide dispute resolution by utilizing mediators who are compensated by the approved center, by utilizing the services of volunteer mediators, or by utilizing both compensated and volunteer mediators. Services provided by approved programs or indi- viduals may be compensated or provided on a volunteer basis.

Sec. 11. K.S.A. 1995 Supp. 5-511 is hereby amended to read as fol- lows: 5-511. (a) Each mediator of an approved center shall assist the parties in reaching a mutually acceptable resolution of their dispute through discussion and negotiation. The mediator shall be impartial, neu- tral and unbiased and shall make no decisions for the parties. The me- diator shall act in accordance with the ethics requirements and standards prescribed by rules adopted by the supreme court pursuant to the dispute resolution act.

(b) The mediator shall officially terminate the process if the parties are unable to agree. The termination shall be without prejudice to either party in any other proceeding.

(c) The mediator has no authority to make or impose any adjudicatory sanction or penalty upon the parties.

(d) The mediator shall recommend outside resources to the parties whenever appropriate. The mediator shall advise participants to obtain legal review of agreements as necessary.

Approved programs and individuals providing services under the dis- pute resolution act shall comply with rules of procedure and ethics as set forth by the supreme court or the director.

Sec./007006/K.S.A. 1995 Supp. 5-512 is hereby amended to read as fol- lows: 5-512. (a) All verbal or written information transmitted between any party to a dispute and a mediator neutral person conducting a proceeding under the dispute resolution act or the staff of an approved center pro- gram shall be confidential communications. Mediation proceedings shall be regarded as settlement negotiations, and 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 the dispute resolution act shall not be subject to proc- ess requiring the disclosure of any matter discussed during mediation the proceedings unless all the parties consent to a waiver. Any party, includ- ing the neutral person conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to pre- vent 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 authorized 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 neutral person conducting the proceeding 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 neutral person conducting the proceeding is required to report or communicate under the specific pro- visions of any statute or in order to comply with orders of a court.

Sec./007006/K.S.A. 1995 Supp. 5-513 is hereby amended to read as fol- lows: 5-513. No mediator neutral person, staff member, or member of a governing board of an approved center program may be held liable for civil damages for any statement or decision made in the process of dispute resolution unless such person acts, or fails to act, in a manner constituting gross negligence with malicious purpose or in a manner exhibiting willful disregard of the rights, safety or property of any party to the process of dispute resolution.

Sec./007006/K.S.A. 1995 Supp. 5-515 is hereby amended to read as fol- lows: 5-515. During the period of the dispute resolution process, any applicable statute of limitations shall be tolled as to the parties. The tolling shall commence on the date that the parties jointly agree in writing to participate in mediation a proceeding under the dispute resolution act and shall end on the date mediation the proceeding is officially terminated by the mediator neutral person. This period shall be no longer than 60 days without consent of all the parties.

Sec./007006/K.S.A. 1995 Supp. 5-516 is hereby amended to read as fol- lows: 5-516. The supreme court, upon recommendation by the director in consultation with the council, shall adopt rules for the administration of the dispute resolution act and to prescribe ethics requirements and standards for mediators of approved centers programs and individuals.

Sec./007006/K.S.A. 1995 Supp. 5-517 is hereby amended to read as fol- lows: 5-517. There is hereby created the dispute resolution fund in the state treasury which shall be administered by the judicial administrator. All expenditures from the dispute resolution fund shall be for the oper- ating expenses of the office of dispute resolution in the office of the judicial administrator, the advisory council on dispute resolution, or other activities or grants authorized or provided for under purpose of carrying out the dispute resolution act. In addition to funds generated by remit- tances under K.S.A. 20-367, and amendments thereto, funds acquired through grants, training fees, registration and approval fees, and other public or private sources and designated for dispute resolution, shall be remitted to the dispute resolution fund for carrying out the dispute res- olution act. All expenditures from the dispute resolution fund shall be made in accordance with appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the judicial administrator or by the judicial administrator's designee.

Sec./007006/K.S.A. 1995 Supp. 5-501, 5-502, 5-503, 5-504, 5-505, 5-506, 5-507, 5-508, 5-509, 5-510, 5-511, 5-512, 5-513, 5-515, 5-516 and 5-517 are hereby repealed.

Sec./007006/This act shall take effect and be in force from and after its publication in the statute book.

Approved April 4, 1996.