Current through Register Vol. 63, No. 12, December 1, 2024
(1)
This rule applies to workplace interpersonal disputes, which are disputes
involving the interpersonal relationships between this agency's employees,
officials or employees and officials. This rule does not apply to disputes
involving the negotiation of labor contracts or matters about which a tort
claim notice or a lawsuit has been filed.
(2) The words and phrases used in this rule
have the same meaning as given to them in ORS 36.110 and 36.234.
(3) Nothing in this rule affects any
confidentiality created by other law.
(4) To the extent mediation communications
would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408),
those mediation communications are not admissible as provided in ORS 40.190(OEC
Rule 408), notwithstanding any provisions to the contrary in section (9) of
this rule.
(5) Disclosures by
Mediator. A mediator may not disclose or be compelled to disclose mediation
communications in a mediation and, if disclosed, such communications may not be
introduced into evidence in any subsequent administrative, judicial or
arbitration proceeding unless:
(a) All the
parties to the mediation and the mediator agree in writing to the disclosure;
or,
(b) The mediation communication
may be disclosed or introduced into evidence in a subsequent proceeding as
provided in subsections (c) or (h)-(l) of section (7) of this
rule.
(6) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in section
(7) of this rule, mediation communications in mediations involving workplace
interpersonal disputes are confidential and may not be disclosed to any other
person, are not admissible in any subsequent administrative, judicial or
arbitration proceeding and may not be disclosed during testimony in, or during
any discovery conducted as part of a subsequent proceeding, or introduced into
evidence by the parties or the mediator in any subsequent proceeding so long
as:
(a) The parties to the mediation and the
agency have agreed in writing to the confidentiality of the mediation;
and
(b) The person agreeing to the
confidentiality of the mediation on behalf of the agency:
(A) Is neither a party to the dispute nor the
mediator; and
(B) Is designated by
the agency to authorize confidentiality for the mediation; and
(C) Is at the same or higher level in the
agency than any of the parties to the mediation or who is a person with
responsibility for human resources or personnel matters in the agency, unless
the agency head or member of the governing board is one of the persons involved
in the interpersonal dispute, in which case the Governor or the Governor's
designee.
(7)
Exceptions to Confidentiality and Inadmissibility.
(a) Any statements, memoranda, work products,
documents and other materials, otherwise subject to discovery that were not
prepared specifically for use in the mediation are not confidential and may be
disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are
public records, as defined in ORS 192.410(4), and were not specifically
prepared for use in the mediation are not confidential and may be disclosed or
introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal
law.
(c) A mediation communication
is not confidential and may be disclosed by any person receiving the
communication to the extent that person reasonably believes that disclosing the
communication is necessary to prevent the commission of a crime that is likely
to result in death or bodily injury to any person. A mediation communication is
not confidential and may be disclosed in a subsequent proceeding to the extent
its disclosure may further the investigation or prosecution of a felony crime
involving physical violence to a person.
(d) The parties to the mediation may agree in
writing that all or part of the mediation communications are not confidential
or that all or part of the mediation communications may be disclosed and may be
introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential, privileged or otherwise prohibited from
disclosure under state or federal law.
(e) A party to the mediation may disclose
confidential mediation communications to a person if the party's communication
with that person is privileged under ORS Chapter 40 or other provision of law.
A party to the mediation may disclose confidential mediation communications to
a person for the purpose of obtaining advice concerning the subject matter of
the mediation, if all the parties agree.
(f) A written mediation communication may be
disclosed or introduced as evidence in a subsequent proceeding at the
discretion of the party who prepared the communication so long as the
communication is not otherwise confidential under state or federal law and does
not contain confidential information from the mediator or another party who
does not agree to the disclosure.
(g) In any proceeding to enforce, modify or
set aside a mediation agreement, a party to the mediation may disclose
mediation communications and such communications may be introduced as evidence
to the extent necessary to prosecute or defend the matter. At the request of a
party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other
than the parties to the agreement.
(h) In an action for damages or other relief
between a party to the mediation and a mediator or mediation program, mediation
communications are not confidential and may be disclosed and may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the
request of a party, the court may seal any part of the record of the proceeding
to prevent further disclosure of the mediation communications or agreements
(i) To the extent a mediation
communication contains information the substance of which is required to be
disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of
the communication may be disclosed as required by statute.
(j) The mediator may report the disposition
of a mediation to the agency at the conclusion of the mediation so long as the
report does not disclose specific confidential mediation communications. The
agency or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the
provisions of ORS 36.232.
(k) Any
mediation communication relating to child abuse that is made to a person
required to report abuse under ORS 419B.010 is not confidential to the extent
that the person is required to report the communication.
(l) Any mediation communication relating to
elder abuse that is made to a person who is required to report abuse under ORS
124.050 to 124.095 is not confidential to the extent that the person is
required to report the communication.
(8) The terms of any agreement arising out of
the mediation of a workplace interpersonal dispute are confidential so long as
the parties and the agency so agree in writing. Any term of an agreement that
requires an expenditure of public funds, other than expenditures of $1,000 or
less for employee training, employee counseling or purchases of equipment that
remain the property of the agency, may not be made confidential.
(9) When a mediation is subject to section
(6) of this rule, the agency will provide to all parties to the mediation and
to the mediator a copy of this rule or an explanation of where a copy of the
rule may be obtained. The mediation confidentiality agreement must also refer
to this rule. Violation of this provision does not waive confidentiality or
inadmissibility.
Stat. Auth.: ORS 36.224
Stats. Implemented: ORS
36.230
