There is no privilege under Section 78B-10-104 for a mediation communication that is:
Terms Used In Utah Code 78B-10-106
Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
Contract: A legal written agreement that becomes binding when signed.
Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Mediation: means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. See Utah Code 78B-10-102
Mediation communication: means conduct or a statement, whether oral, in a record, 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. See Utah Code 78B-10-102
Mediation party: means a person that participates in a mediation and whose agreement is necessary to resolve the dispute. See Utah Code 78B-10-102
Mediator: means an individual who is neutral and conducts a mediation. See Utah Code 78B-10-102
Nonparty participant: means a person, other than a party or mediator, that participates in a mediation. See Utah Code 78B-10-102
Proceeding: means :
(a)
a judicial, administrative, arbitral, or other adjudicative process, including related prehearing and posthearing motions, conferences, and discovery; or
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. See Utah Code 78B-10-102
(a)
in an agreement evidenced by a record signed by all parties to the agreement;
a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(d)
intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(e)
sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;
(f)
except as otherwise provided in Subsection (3), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(g)
subject to the reporting requirements in Section 26B-6-205 or 80-2-602.
(2)
There is no privilege under Section 78B-10-104 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that:
(a)
the evidence is not otherwise available;
(b)
there is a need for the evidence that substantially outweighs the interest in protecting confidentiality; and
(c)
the mediation communication is sought or offered in:
(i)
a court proceeding involving a felony or misdemeanor; or
(ii)
except as otherwise provided in Subsection (3), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
(3)
A mediator may not be compelled to provide evidence of a mediation communication referred to in Subsection (1)(f) or (2)(c)(ii).
(4)
If a mediation communication is not privileged under Subsection (1) or (2), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under Subsection (1) or (2) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.
