OAR 137-005-0050: Confidentiality of Collaborative Dispute Resolution Communications

(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.