Oregon Administrative Rules
Chapter 736 - PARKS AND RECREATION DEPARTMENT
Division 140 - CONFIDENTIALITY AND INADMISSIBILITY OF MEDIATION COMMUNICATIONS
Section 736-140-0006 - Confidentiality of Collaborative Dispute Resolution Communications
Universal Citation: OR Admin Rules 736-140-0006
Current through Register Vol. 63, No. 9, September 1, 2024
(1) For the purposes of this rule,
(a) "Agreement to
mediate" means a written agreement to mediate executed by the parties
establishing the terms and conditions of the mediation, which may include
provisions specifying the extent to which mediation communications will be
confidential.
(b) "Mediation" means
a process in which a mediator assists and facilitates two or more parties to a
controversy in reaching a mutually acceptable resolution of the controversy and
includes all contacts between a mediator and any party or agent of a party,
until such time as a resolution is agreed to by the parties or the mediation
process is terminated.
(c)
"Mediation agreement" means an agreement arising out of a mediation, including
any term or condition of the agreement.
(d) "Mediation communication" means:
(A) All communications that are made, in the
course of or in connection with a mediation, to a mediator, a mediation program
or a party to, or any other person present at, the mediation proceedings;
and
(B) All memoranda, work
products, documents and other materials, including any draft mediation
agreement, that are prepared for or submitted in the course of or in connection
with a mediation or by a mediator, a mediation program or a party to, or any
other person present at, mediation proceedings.
(e) "Mediator" means a third party who
performs mediation. Mediator includes agents and employees of the mediator or
mediation program.
(f) "Party"
means a person or agency participating in a mediation who has a direct interest
in the controversy that is the subject of the mediation. A person or agency is
not a party to a mediation solely because the person or agency is conducting
the mediation, is making the mediation available or is serving as an
information resource at the mediation.
(2) If the agency is a party to a mediation or is mediating a dispute as to which the agency has regulatory authority:
(a) The agency may choose to adopt either or
both the Model Rule for Confidentiality and Inadmissibility of Mediation
Communications in OAR 137-050-0052 or the Model Rule for Confidentiality and
Inadmissibility of Workplace Interpersonal Mediation Communications in
137-050-0054, in which case mediation communications shall be confidential to
the extent provided in those rules. The agency may adopt the rules by reference
without complying with the rulemaking procedures under ORS
183.335. Notice of such adoption
shall be filed with the Secretary of State in the manner provided by ORS
183.355 for the filing of
rules.
(b) If the agency has not
adopted confidentiality rules pursuant to ORS
36.220 to
36.238, mediation communications
shall not be confidential unless otherwise provided by law, and the agency
shall inform the parties in the mediation of that fact in an agreement to
collaborate pursuant to OAR
137-005-0030 or other
document.
(3) If the agency is mediating a dispute as to which the agency is not a party and does not have regulatory authority, mediation communications are confidential, except as provided in ORS 36.220 to 36.238. The agency and the other parties to the mediation may agree in writing that all or part of the mediation communications are not confidential. Such an agreement may be made a part of an agreement to collaborate authorized by OAR 137-005-0030.
(4) If the agency and the other participants in a collaborative DR process other than a mediation wish to make confidential the communications made during the course of the collaborative DR process:
(a) The agency, the other participants and
the collaborative DR provider, if any, shall sign an agreement to collaborate
pursuant to OAR 137-005-0030 or any other
document that expresses their intent with respect to:
(A) Disclosures by the agency and the other
participants of communications made during the course of the collaborative DR
process;
(B) Disclosures by the
collaborative DR provider of communications made during the course of the
collaborative DR process;
(C) Any
restrictions on the agency's use of communications made during the course of
the collaborative DR process in any subsequent administrative proceeding of the
agency; and
(D) Any restrictions on
the ability of the agency or the other participants to introduce communications
made during the course of the collaborative DR process in any subsequent
judicial or administrative proceeding relating to the issues in controversy
with respect to which the communication was made.
(b) Notwithstanding any agreement under
subsection (4)(a) of this rule, communications made during the course of a
collaborative DR process:
(A) May be disclosed
if the communication relates to child abuse and is made to a person who is
required to report abuse under ORS
419B.010 to the extent the
person is required to report the communication;
(B) May be disclosed if the communication
relates to elder abuse and is made to a person who is required to report abuse
under ORS 124.050 to
124.095 to the extent the person
is required to report the communication;
(C) May be disclosed if the communication
reveals past crimes or the intent to commit a crime;
(D) May be disclosed by a party to a
collaborative DR process to another person if the party's communication with
that person is privileged under ORS Chapter 40 or other provision of
law;
(E) May be used by the agency
in any subsequent proceeding to enforce, modify or set aside an agreement
arising out of the collaborative DR process;
(F) May be disclosed in an action for damages
or other relief between a party to a collaborative DR process and a DR provider
to the extent necessary to prosecute or defend the matter; and
(G) Shall be subject to the Public Records
Law, ORS 192.311 to
192.478, and the Public Meetings
Law, ORS 192.610 to
192.690.
(c) If a demand for disclosure of a
communication that is subject to an agreement under this section is made upon
the agency, any other participant or the collaborative DR provider, the person
receiving the demand for disclosure shall make reasonable efforts to notify the
agency, the other participants and the collaborative DR
provider.
Statutory/Other Authority: ORS 390.124 & ORS 36.224
Statutes/Other Implemented: ORS 36.224
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