436.362. Mediation requirements.
Mediation requirements.
436.362. 1. At any time, either a claimant or contractor may offerto resolve a claim against a contractor through mediation. Mediationpursuant to this section shall be nonbinding and independentlyadministered. The contractor and claimant shall mutually agree upon aqualified independent and neutral mediator and shall equally share the costof the mediator. If the parties agree upon a mediator, then the mediationshall take place within a reasonable time period, but in no event laterthan forty-five days after service of a request for mediation by a claimantupon a contractor or a request by a contractor upon a claimant. Acontractor who receives a request for mediation from a claimant shall servea response in writing within fourteen days and may include within theresponse the name of a proposed mediator and mediation date. A claimantwho receives a request for mediation from a contractor shall serve aresponse in writing within fourteen days and may include within theresponse the name of a proposed mediator and mediation date.
2. The contractor or claimant may include in the mediation any personor entity reasonably necessary for resolution of the claim asserted. Thissubsection shall not be construed to mandate attendance at a mediation by aperson or entity other than the contractor or claimant served with a noticeof claim.
3. If all the parties to a dispute agree in writing to submit theirdispute to any forum for arbitration, conciliation, or mediation, then noperson who serves as arbitrator, conciliator or mediator, nor any agent oremployee of that person, shall be subpoenaed or otherwise compelled todisclose any matter disclosed in the process of setting up or conductingthe arbitration, conciliation, or mediation.
4. Arbitration, conciliation, and mediation proceedings shall beregarded as settlement negotiations and the confidentiality of suchproceeding shall be as set forth in supreme court rule 17.
5. Notwithstanding any provisions of law or the agreements of theparties to the contrary, the resolution of the dispute by the partiesthrough mediation or otherwise shall not operate to release any claim ofthe claimant except the claim described in the notice of defect, and shallnot operate to release the claim described in the notice of defect untilthe agreed-upon remedy has been accomplished.
(L. 2005 S.B. 168 § 431.312)