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
negotiations 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 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 OS 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)-(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
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 or 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(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.
Stat. Auth.: ORS
36.224, ORS
670.310 & ORS
671.670
Stats. Implemented: ORS
36.230(4)
