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the privileges under sections 10004 to 10006 do not apply to the | | mediation or part agreed upon. However, sections 10004 to 10006 | | apply to a mediation communication made by a person that has not | | received actual notice of the agreement before the communication | | is made. |
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| | | The Act is broad in its coverage of mediation, a departure | | from the common state statutes that apply to mediation in | | particular contexts, such as court-connected mediation or | | community mediation, or to the mediation of particular types | | of disputes, such as worker's compensation or civil rights. | | See, e.g., Neb. Rev. Stat. Section 48-168 (1993) (worker's | | compensation); Iowa Code Section 216.15A (1999) (civil | | rights). Moreover, unlike many mediation privileges, it also | | applies in some contexts in which the Rules of Evidence are | | not consistently followed, such as administrative hearings and | | arbitration. |
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| | | Whether the Act in fact applies is a crucial issue because it | | determines not only the application of the mediation privilege | | but also whether the mediator has the obligations regarding | | the disclosure of conflicts of interest and, if asked, | | qualifications in Section 9; is prohibited from making | | disclosures about the mediation to courts, agencies and | | investigative authorities in Section 7; and must accommodate | | requirements regarding accompanying individuals in Section 10. |
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| | | Because of the breadth of the Act's coverage, it is important | | to delineate its scope with precision. Section 3(a) sets forth | | three different mechanisms that trigger the Act's coverage, | | and will likely cover most mediation situations that commonly | | arise. Section 3(b) on the other hand, carves out a series of | | narrow and specific exemptions from the Act's coverage. | | Finally, Section 3(c) provides a vehicle through which parties | | who would be mediating in a context covered by Section 3(a) | | may "opt out" of the Act's protections and responsibilities. | | The central operating principle throughout this Section is | | that the Act should support, and guide, the parties' | | reasonable expectations about whether the mediations in which | | they are participating are included within the scope of the | | Act. |
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| | | 2. Section 3(a). Mediations covered by Act; triggering | | mechanisms. |
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| | | Section 3(a) sets forth three conditions, the satisfaction of | | any one of which will trigger the application of the Act. This | | triggering requirement is necessary because the many different | | forms, contexts, and practices of mediation and other methods | | of dispute resolution make it sometimes difficult to know with |
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