Oregon Administrative Rules › Chapter 115 - EMPLOYMENT RELATIONS BOARD › Division 40 - DISPUTE RESOLUTION IN PUBLIC EMPLOYMENT › Section 115-040-0042 - Mediator May Not Disclose Mediation Communications in Subsequent Proceedings

Current through Register Vol. 63, No. 7, July 1, 2024
Except as provided in this rule, a mediator may not disclose or
				be compelled to disclose mediation communications in mediations described in
				OAR
				115-040-0041(1)
 
				and, if disclosed, such communications may not be introduced into evidence in
				any subsequent administrative, judicial or arbitration proceeding unless all
				the parties to the mediation and the mediator agree in writing to the
				disclosure.
(1) In an action for
			 damages or other relief between a party to the mediation and a mediator or
			 mediation program, a mediator may disclose mediation communications to the
			 extent that those communications may be 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.
(2) A mediator may
			 disclose confidential mediation communication directly related to child abuse
			 or elder abuse if the mediator is a person who has a duty to report child abuse
			 under ORS 419B.010 or elder abuse under
			 124.050 to 124.095.
(3) A mediator
			 may disclose confidential mediation communications if the mediator reasonably
			 believes that disclosing the communication is necessary to prevent a party from
			 committing a crime that is likely to result in death or bodily injury to any
			 person.
(4) A mediator may disclose
			 a mediation communication if, as a condition of a professional license, the
			 mediator is compelled by law or the rule of a court to disclose a communication
			 related to the conduct of another licensed professional.
(5) When the only parties to the mediation
			 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 and may be disclosed and
			 introduced into evidence in any subsequent proceeding.
(6) When the parties to the mediation include
			 a private party and two or more public bodies, mediation communications are not
			 confidential 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 and may be disclosed and introduced into
			 evidence in any subsequent proceeding.
(7) When a person acts as the mediator in the
			 mediation and also acts as the hearing officer in a contested case involving
			 some or all of the same matters, the communications in the mediation are not
			 confidential and may be disclosed and introduced into evidence in any
			 subsequent proceeding.
(8) A
			 mediator may disclose mediation communications described in OAR 115-040-0043  and such communications may be introduced into evidence in any subsequent
			 proceeding to the extent provided in that rule.
(9) The terms of any mediation agreement are
			 not confidential, may be disclosed and may be introduced as evidence in any
			 subsequent proceeding.
Stat. Auth.: ORS
				  243.766(7),
				  240.086(3)
				  & OL 1997, Ch. 670
Stats. Implemented: ORS
				  192.410 -
				  192.505