Current through Register Vol. 63, No. 9, September 1, 2024
(1) The words and
phrases used in this rule have the same meaning as given to them in ORS
36.110 and
36.234.
(2) Nothing in this rule affects any
confidentiality created by other law. Nothing in this rule relieves a public
body from complying with the Public Meetings Law, ORS
192.610 to
192.690. Whether or not they are
confidential under this or other rules of the agency, mediation communications
are exempt from disclosure under the Public Records Law to the extent provided
in ORS 192.410 to
192.505.
(3) This rule applies only to mediations in
which the agency is a party or is mediating a dispute as to which the agency
has regulatory authority. This rule does not apply when the agency is acting as
the "mediator" in a matter in which the agency also is a party as defined in
ORS 36.234.
(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)
Mediations
Excluded. Sections (6)-(10) of this rule do not apply to:
(a) Mediation of workplace interpersonal
disputes involving the interpersonal relationships between this agency's
employees, officials or employees and officials, unless a formal grievance
under a labor contract, a tort claim notice or a lawsuit has been filed;
or
(b) Mediation in which the
person acting as the mediator will also act as the hearings officer in a
contested case involving some or all of the same matters; or
(c) Mediation in which the only parties are
public bodies; or
(d) Mediation
involving two or more public bodies and a private party if the laws, rule or
policies governing mediation confidentiality for at least one of the public
bodies provide that mediation communications in the mediation are not
confidential; or
(e) Mediation
involving 15 or more parties if the agency has designated that another
mediation confidentiality rule adopted by the agency may apply to that
mediation.
(6)
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)-(d), (j)-(l), or (o)-(p) of section (9) of this rule.
(7)
Confidentiality and
Inadmissibility of Mediation Communications. Except as provided in
section (8) and (9) of this rule, mediation communications 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 as evidence by the parties or the mediator in any
subsequent proceeding.
(8)
Written Agreement. Section (7) of this rule does not apply to
mediation unless the parties to the mediation agree in writing, as provided in
this section, that the mediation communications in the mediation will be
confidential and/or nondiscoverable and inadmissible. If the mediator is the
employee of and acting on behalf of a state agency, the mediator or an
authorized agency representative must also sign the agreement. The parties'
agreement to participate in a confidential mediation must be in substantially
the following form. This form may be used separately or incorporated into an
"agreement to mediate." [Form not included. See ED. NOTE.]
(9)
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 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) Any mediation
communication related to the conduct of a licensed professional that is made to
or in the presence of a person who, as a condition of his or her professional
license, is obligated to report such communication by law or court rule is not
confidential and may be disclosed to the extent necessary to make such a
report.
(e) 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.
(f) 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.
(g) An employee of the agency may disclose
confidential mediation communications to another agency employee so long as the
disclosure is necessary to conduct authorized activities of the agency. An
employee receiving a confidential mediation communication under this subsection
is bound by the same confidentiality requirements as apply to the parties to
the mediation.
(h)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.
(i) 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.
(j) 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.
(k) When a mediation is
conducted as part of the negotiation of a collective bargaining agreement, the
following mediation communications are not confidential and such communications
may be introduced into evidence is a subsequent administrative, judicial or
arbitration proceeding:
(A) A request for
mediation, or
(B) A communication
from the Employment Relations Board Conciliation Service establishing the time
and place of mediation, or
(C) A
final offer submitted by the parties to the mediator pursuant to ORS
243.712, or
(D) A strike notice submitted to the
Employment Relations Board.
(l) 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.
(m) Written mediation communications prepared
by or for the agency or its attorney are not confidential and may be disclosed
and may be introduced as evidence in any subsequent administrative, judicial or
arbitration proceeding to the extent the communication does not contain
confidential information from the mediator or another party, except for those
written mediation communications that are:
(A) Attorney-client privileged communications
so long as they have been disclosed to no one other than the mediator in the
course of the mediation or to persons as to whom disclosure of the
communication would not waive the privilege, or
(B) Attorney work product prepared in
anticipation of litigation or for trial, or
(C) Prepared exclusively for the mediator or
in a caucus session and not given to another party in the mediation other than
a state agency, or
(D) Prepared in
response to the written request of the mediator for specific documents or
information and given to another party in the mediation, or
(E) Settlement concepts or proposals, shared
with mediator or other parties.
(n) A mediation communication made to the
agency may be disclosed and may be admitted into evidence to the extent the
Director or designee determines that disclosure of the communication is
necessary to prevent or mitigate a serious danger to the public's health or
safety, and the communication is not otherwise confidential or privileged under
state or federal law.
(o) The terms
of any mediation agreement are not confidential and may be introduced as
evidence in a subsequent proceeding, except to the extent the terms of the
agreement are exempt from disclosure under ORS
192.410 to
192.505, a court has ordered the
terms to be confidential under ORS
17.095 or state or federal law
requires the terms to be confidential.
(p) 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(4).
(10) When a mediation is subject
to section (7) of this rule, the agency will provide to all parties to the
mediation and the mediator a copy of this rule or a citation to the rule and an
explanation of where a copy of the rule may be obtained. Violation of the
provision does not waive confidentiality or
inadmissibility.
Forms referenced are available from the
agency.
Stat. Auth.: ORS
36.224 and
238.650
Stats. Implemented: ORS
36.224,
36.228,
36.230,
36.232 and ORS Chapter
238
