SENATE Amended 3rd Reading February 22, 2011 SENATE Amended 2nd Reading February 21, 2011First Regular Session Sixty-eighth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 11-0464.01 Brita Darling SENATE BILL 11-013 SENATE SPONSORSHIP Newell, HOUSE SPONSORSHIP Lee, Senate Committees House Committees Judiciary A BILL FOR AN ACT Concerning the use of alternative dispute resolution practices. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill defines the term "restorative mediation" and includes "restorative mediation" as a part of "mediation services" as that term is used in the "Dispute Resolution Act". The bill clarifies that a court may refer a case to additional forms of alternative dispute resolution, including mediation, restorative justice, and restorative mediation. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly hereby finds and declares that: (a) Alternative dispute resolution practices in Colorado provide a cost-effective, efficient, and timely method for resolving offenses, disputes, and conflicts; and (b) Engagement of the participants, acceptance of accountability, and restoration from harms are critical elements in the resolution of offenses, disputes, and conflicts; and (c) Restorative justice and other restorative processes may address the harms and needs of participants; and (d) Restorative justice and other restorative processes facilitate a voluntary dialogue that promotes engagement, accountability, and restoration. (2) The general assembly encourages and supports the use of all forms of dispute resolution and mediation. SECTION 2. 13-22-302, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 13-22-302. Definitions. As used in this part 3, unless the context otherwise requires: (94.1) "Restorative justice practice" means, in the context of a civil claim, facilitated meetings attended voluntarily by the parties and other appropriate individuals that provide the opportunity for a voluntary acknowledgment of responsibility and a discussion concerning the repair of any harm, damage, or loss. SECTION 3. 13-22-307, Colorado Revised Statues, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 13-22-307. Confidentiality. (6) In any civil action or arbitration proceeding brought by or on behalf of a party to a mediation, any statement, affirmation, gesture, or conduct that expresses fault, apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence and that is made during the mediation in the civil action or arbitration proceeding by that party or that party's representative shall be inadmissible against that party as evidence of an admission of liability or as evidence of an admission against interest in the civil action or arbitration proceeding. SECTION 4. 13-22-313 (1), Colorado Revised Statutes, is amended to read: 13-22-313. Judicial referral to ancillary forms of alternative dispute resolution. (1) Any court of record, in its discretion, may refer a case to any ancillary form of alternative dispute resolution; except that the court shall not refer the case to any ancillary form of alternative dispute resolution where one of the parties claims that it has been the victim of physical or psychological abuse by the other party and states that it is thereby unwilling to enter into ancillary forms of alternative dispute resolution. Prior to the determination of responsibility in a case, the court shall not refer a case to a restorative justice practice without the written, informed consent of all parties. In addition, the court may exempt from referral any case in which a party files with the court, within five days of a referral order, a motion objecting to ancillary forms of alternative dispute resolution and demonstrating compelling reasons why ancillary forms of alternative dispute resolution should not be ordered. Compelling reasons may include, but are not limited to, that the costs of ancillary forms of alternative dispute resolution would be higher than the requested relief, and previous attempts to resolve the issues were not successful, or the court has referred the case to a restorative justice practice and any party is unwilling to participate in the restorative justice practice. Such forms of alternative dispute resolution may include, but are not limited to: arbitration, early neutral evaluation, med-arb, mini-trial, multi-door courthouse concepts, restorative justice practice, settlement conference, special master, summary jury trial, or any other form of alternative dispute resolution which the court deems to be an effective method for resolving the dispute in question. Parties and counsel are encouraged to seek the most appropriate forum for the resolution of their dispute. Judges may provide guidance or suggest an appropriate forum. However, nothing in this section shall impinge upon the right of parties to have their dispute tried in a court of law, including trial by jury. SECTION 5. Part 3 of article 22 of title 13 is amended BY THE ADDITION OF A NEW SECTION to read: 13-22-314. Participation in a restorative justice practice. If, prior to a determination of responsibility in a case, the court refers the case to a restorative justice practice, the restorative justice practice shall not take place without the written, informed consent of all parties. If a party is represented by an attorney, prior to giving written consent, the party shall be given the opportunity to discuss with his or her attorney whether it is advisable for the party to participate in a restorative justice practice. SECTION 6. Act subject to petition - effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2011, if adjournment sine die is on May 11, 2011); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part shall not take effect unless approved by the people at the general election to be held in November 2012 and shall take effect on the date of the official declaration of the vote thereon by the governor.