OAR 690-004-0020: Applicability of Rules and Inadmissibility of Certain Mediation Communications in Large, Multi-Party Mediation

(1) Except as provided in this rule, or in other rules adopted by this agency pursuant to Oregon Laws 1997, chapter 670, section 3, or by other state or federal law, mediation communications in a mediation session may not be disclosed in any subsequent administrative, judicial or arbitration proceeding or introduced into evidence in any subsequent proceeding so long as: (a) The mediation is one for which: (A) The agency is a party as defined in Oregon Laws 1997, chapter 670, section 11, or is mediating a dispute as to which the agency has regulatory authority; (B) A mediator is assisting and facilitating the parties to reach a mutually acceptable resolution of the issues in controversy; (C) There are 15 or more parties to the mediation, regardless of whether or not all the parties participate in each mediation session; and (D) The agency designates in writing that this rule may apply and provides a copy of the designation along with a copy of this rule to the mediator and to those parties to the mediation that are known to the agency. The designation required by this section must contain sufficient information to identify the mediation, including a brief description of the dispute or issues to be resolved, and the names of those parties to the mediation that are known to the agency; and (b) The specific mediation session is one for which: (A) The agency or the mediator and at least one party other than the agency are present; (B) A party to the mediation or the mediator requests that this rule apply; and (C) If present, the agency agrees to have this rule apply; and (c) The agency or the mediator notifies all persons in attendance at the beginning of the mediation session that the session is being conducted under OAR 690-004-0020 and that any communications in the session may not be disclosed or introduced as evidence in any subsequent proceeding except as otherwise provided by 690-004-0020 or by other rules adopted by the agency pursuant to Oregon Laws 1997, chapter 670 or by other state or federal law. (2) The agency may declare that certain mediation communications are not subject to the inadmissibility or non-disclosure provided by this rule. This declaration must: (a) Be included in the designation provided in paragraph (1)(a)(D), or in an amendment to the declaration in which case the agency must mail or deliver a copy of the designation to all parties listed in the original designation and any other parties that are known to the agency; and (b) Identify the mediation communications that, pursuant to this section, may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding. (3) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408). (4) Nothing in this rule affects any confidentiality created by other law. (5) The words and phrases used in this rule have the same meaning as given to them in Oregon Laws 1997, chapter 670, section 11. (6) Any statements, memoranda, work products, documents and other materials otherwise subject to discovery that were not prepared specifically for use in the mediation may be disclosed and may be introduced as evidence in a subsequent proceeding. (7) Any mediation communications that are public records as defined in ORS 192.410(4) and were not specifically prepared for use in the mediation may be disclosed in a subsequent proceeding and may be introduced into evidence unless the substance of the communication is confidential under state or federal law. (8) A party may disclose confidential mediation communications that were made in a mediation session covered by this rule in a subsequent proceeding if all the parties to the mediation session agree in writing to the disclosure. A communication that has been disclosed may be introduced into evidence in a subsequent proceeding. (9) A mediator may disclose confidential mediation communications that were made in a mediation session covered by this rule in any subsequent proceeding if all the parties to the mediation session and the mediator agree in writing to the disclosure. A communication that has been disclosed may be introduced into evidence in subsequent proceedings. (10) A mediation communication 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. (11) 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 may be disclosed to the extent necessary to make such a report. A communication that has been disclosed may be introduced as evidence in a subsequent proceeding. (12) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation session 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. (13) In an action for damages or other relief between a party to the mediation session and a mediator or mediation program, mediation communications may be disclosed in a subsequent proceeding 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. (14) A written mediation communication may be disclosed in a subsequent proceeding and may be introduced as evidence by the party who prepared the communication so long as it does not contain information from another party to the mediation session or the mediator, or information that is otherwise confidential under state or federal law. (15) When the only parties to the mediation session are public bodies, mediation communications and mediation agreements are not confidential except to the extent those communications or agreements are exempt from disclosure under ORS 192.410 to 192.505. (16) When the parties to the mediation session include a private party and two or more public bodies, mediation communications may be disclosed and may be introduced as evidence in a subsequent proceeding if the laws, rules or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation session are not confidential. (17) The terms of any mediation agreement may be disclosed and may be introduced as evidence in a subsequent proceeding. (18) When a person acts as the mediator in the mediation session and also acts as the hearing officer in a contested case involving some or all of the same matters, the communications in the mediation session may be disclosed and may be introduced as evidence in a subsequent proceeding. (19) Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690.