Current through Register Vol. 63, No. 9, September 1, 2024
(1) The
words and phrases used in these rules have the same meaning as given to them in
ORS 36.110 and
36.234. In addition, as used in
this rule, unless the context requires otherwise:
(a) "Agency" or "the agency" means Oregon
Parks and Recreation Department or OPRD.
(b) "Director" means the Director of the
Oregon Parks and Recreation Department.
(c) "State agency" may refer to Oregon Parks
and Recreation Department or could refer to a state agency other than the
Oregon Parks and Recreation Department if more than one state agency is party
to the mediation.
(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 192.311 to
192.478.
(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 compromise negotiations under ORS
40.190 (OEC Rule 408), those
mediation communications are not admissible as provided in 40.190 (OEC Rule
408), notwithstanding any provisions to the contrary in section (8) of this
rule.
(5) Mediations Excluded.
Sections (6)-(9) 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 in
which two or more public bodies and a private entity are parties 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) and (r)-(s) of section (8) of this
rule.
(7) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in sections
(8) 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 so long as:
(a) The
parties to the mediation sign an agreement to mediate specifying the extent to
which mediation communications are confidential; and,
(b) If the mediator is the employee of or
acting on behalf of a state agency, the mediator or an authorized
representative of the agency signs the agreement.
(8) 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 document that,
before its use in a mediation, was a public record as defined in ORS
192.311(5)
remains subject to disclosure to the extent provided by ORS
192.311 to
192.478 and may be introduced
into evidence in a subsequent proceeding.
(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 in 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
192.311 to
192.478, 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 the 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
192.311 to
192.478, 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) In any mediation in a case that that has
been filed in court or when a public body's role in a mediation is solely to
make mediation available to the parties the mediator may report the disposition
of the mediation to that public body or court at the conclusion of the
mediation so long as the report does not disclose specific confidential
mediation communications. The agency conducting the mediation or making the
mediation available or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the
provisions of ORS 36.232.
(q) An agreement to mediate is not
confidential and may be introduced into evidence in a subsequent
proceeding.
(r) Any mediation
communication relating to child abuse that is made to a person required to
report child abuse under ORS
419B.010 is not confidential to
the extent that the person is required to report the communication.
(s) Any mediation communication relating to
elder abuse that is made to a person who is required to report elder abuse
under ORS 124.050 to
124.095 is not confidential to
the extent that the person is required to report the
communication.
(9) 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 this provision does not waive confidentiality or
inadmissibility.
Forms referenced are available from the
agency.
