Current through Register Vol. 63, No. 9, September 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 formal
grievance under a labor contract, 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 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 (7)
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)-(j) 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 Governor's
designee.
(7)
Exceptions to confidentiality and inadmissibility.
(a) Any statement, 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
192.311(5),
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 the 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
192.311 to
192.431,
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(4).
(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. Violation of this provision does not
waive confidentiality or inadmissibility.
Statutory/Other Authority: ORS
36.224 & 238.650
Statutes/Other Implemented: ORS
36.230(4)
& 238
