Delaware General Assembly

CHAPTER 92

FORMERLY

SENATE BILL NO. 38

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO VICTIM-OFFENDER MEDIATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 95, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 95. Victim-Offender Mediation Alternative Case Resolution.

Section 2. Amend § 9501, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 9501. Purpose.

(a) The General Assembly finds and declares that:

(b) It is the intent of the General Assembly that each program established pursuant to under this chapter do all of the following:

Section 3. Amend § 9502, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 9502. Program funding; operation; supervision.

(a) There is hereby established a Victim-Offender Mediation Alternative Case Resolution Committee to be composed of the Attorney General, Chief Defender, Chief Magistrate, Chief Judge of the Court of Common Pleas, Chair Director of the Criminal Justice Council, State Court Administrator and the Chief Judge of Family Court or their designees to administer this chapter. No funds shall Funds may not be awarded or a program approved without the approval of the Victim-Offender Mediation Alternative Case Resolution Committee.

(b) To be eligible for state funds, a program must do all of the following:

(c) Each program that receives funds under this chapter must be operated under a contract with the Victim-Offender Mediation Alternative Case Resolution Committee and must comply with this chapter.

(d) An organization applying to the Victim-Offender Mediation Alternative Case Resolution Committee for funding is to include all of the following information in its application:

(e) The Chair of the Victim-Offender Mediation Alternative Case Resolution Committee or the Chair's designee may inspect, examine and audit the fiscal affairs and 990 Forms of victim-offender mediation alternative case resolution programs.

(f) A program operated under this chapter is not a state agency or an instrumentality of the State. Employees and volunteers of a program are not employees of the State.

(g) A program that receives funds from the Victim-Offender Mediation Alternative Case Resolution Committee under this chapter must annually provide the Victim-Offender Mediation Alternative Case Resolution Committee with statistical data regarding all of the following:

The data shall maintain the confidentiality and anonymity of all mediation participants.

Section 4. Amend § 9503, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 9503. Confidentiality.

All memoranda, work notes or products, or case files or programs established under this chapter are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were submitted by a participant to the program for the purpose of avoiding discovery of the material in a subsequent proceeding. Any communication relating to the subject matter of the resolution made during the mediation process by any participant, mediator or any other person is a privileged communication and is not subject to disclosure in any judicial or administrative proceeding unless all parties to the communication waive the privilege. The foregoing privilege and limitation of evidentiary use does not apply to any communication of a threat that injury or damage may be inflicted on any person or on the property of a party to the dispute, to the extent the communication may be relevant evidence in a criminal matter. Nothing in this section shall prevent the Victim-Offender Mediation Committee from obtaining access to any information it deems necessary to administer this chapter.

(a) All memoranda, work notes or products, case files or programs, and data collected under this chapter are confidential and privileged. This information is not subject to disclosure in any judicial or administrative proceeding.

(b) Confidentiality under subsection (a) of this section may be waived if a court or administrative tribunal determine that the materials were submitted by a participant to the program for the purpose of avoiding discovery of the material in a subsequent proceeding.

(c) Any communication relating to the subject matter of the resolution made during the mediation process by any participant, mediator, or any other person is a privileged communication. It is not subject to disclosure in any judicial or administrative proceeding unless all parties to the communication waive the privilege.

(d) To the extent that the communication in subsection (c) of this section may be relevant evidence in a criminal matter, the privilege and limitation of evidentiary use does not apply to any communication of a threat that injury or damage may be inflicted on any person or on the property of a party to the dispute.

(e) Nothing in this section prevents the Victim-Offender Alternative Case Resolution Committee from obtaining access to any information it deems necessary to administer this chapter.

Section 5. Amend § 9504, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 9504. Eligibility.

No offender shall be admitted to the program unless the Attorney General certifies that the offender is appropriate to the program, regardless of any criteria established under any program or this chapter.

Any person who voluntarily enters a mediation process at a victim-offender mediation program established under this chapter may revoke that person's consent, withdraw from mediation and seek judicial or administrative redress prior to reaching a written agreement. No legal penalty, sanction or restraint may be imposed upon the person for such withdrawal.

(a) An offender may not be admitted to the program unless the Attorney General certifies that the offender is appropriate for the program, regardless of any criteria established under any program or this chapter.

(b) A person who voluntarily enters an alternative case resolution process at a victim-offender alternative case resolution program established under this chapter may revoke that person’s consent, withdraw from the alternative case resolution process, and seek judicial or administrative redress before reaching a written agreement. A legal penalty, sanction, or restraint may not be imposed on the person for such withdrawal.

Section 6. Amend § 9505, Title 11 of the Delaware Code by making deletions as shown by strikethrough and insertions as shown by underline as follows:

§ 9505. Immunity.

(a) Members of the Victim-Offender Mediation Alternative Case Resolution Committee or board of directors of an organization with a victim-offender mediation alternative case resolution program are immune from suit in any civil action based upon any proceedings or other official acts performed in good faith as members of the board.

(b) State employees and employees and volunteers of a victim-offender mediation alternative case resolution program are immune from suit in any civil action based on any proceedings or other official act performed in their capacity as employees or volunteers, except in cases of wilful or wanton misconduct.

(c) A victim-offender mediation alternative case resolution program is immune from suit in any civil action based on any of its proceedings or other official acts performed by its employees, volunteers volunteers, or members of its board of directors, except (1) in cases of wilful or wanton misconduct by its employees or volunteers, and (2) in cases of official acts performed in bad faith by members of its board. except in the following cases: