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 the
documents 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 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 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) through (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 administrative law judge in
a contested case involving some or all of the same matters;
(c) Mediation in which the only parties are
public bodies;
(d) Mediation
involving two or more public bodies and a private party if the laws, rules, 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) and (d), (j) through (l), or (o) and (p) of section (9) of this
rule.
(7)
Confidentiality and Inadmissibility of Mediation Communications. Except as
provided in sections (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 a 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."
Agreement to Participate in a Confidential
Mediation
The agency and the parties to the mediation agree to
participate in a mediation in which the mediation communications are
confidential and/or nondiscoverable and inadmissible to the extent authorized
by OAR 860-016-0015(7) and this agreement. This agreement relates to the
following mediation:
a)
___________________________________________
(Identify the mediation to which this agreement applies)
b) To the extent authorized by OAR
860-016-0015(7), mediation communications in this mediation are: (check one or
more)
__ confidential and may not be disclosed to any other
person.
__ not admissible in any subsequent administrative proceeding
and may not be disclosed during testimony in or during any discovery conducted
as part of a subsequent administrative proceeding, or introduced as evidence by
the parties or the mediator in any subsequent administrative proceeding.
__ 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 administrative,
judicial, or arbitration proceeding, or introduced as evidence by the parties
or the mediator in any subsequent administrative, judicial, or arbitration
proceeding.
c)
__________________________________________
Name of Agency
_____________________________________ Date_________
Signature of Agency's authorized representative (when agency is
a party) or Agency employee acting as the mediator (when Agency is mediating
the dispute)
d)
________________________________________
Name of party to the mediation
_____________________________________ Date_________
Signature of party's authorized representative
e)
_______________________________________
Name of party to the mediation
_____________________________________ Date_________
Signature of party's authorized representative
(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 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) 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
192.410 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 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
Commission 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
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 the mediator and all
parties to the mediation 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.
Stat. Auth.: ORS
36.224
Stats. Implemented: ORS
36.224, ORS
36.228, ORS
36.230, ORS
36.232 & ORS
756.060
