Mediation and Arbitration

ORS 36.220
Confidentiality of mediation communications and agreements

  • exceptions

(1)

Except as provided in ORS 36.220 (Confidentiality of mediation communications and agreements) to 36.238 (Application of ORS 36):

(a)

Mediation communications are confidential and may not be disclosed to any other person.

(b)

The parties to a mediation may agree in writing that all or part of the mediation communications are not confidential.

(2)

Except as provided in ORS 36.220 (Confidentiality of mediation communications and agreements) to 36.238 (Application of ORS 36):

(a)

The terms of any mediation agreement are not confidential.

(b)

The parties to a mediation may agree that all or part of the terms of a mediation agreement are confidential.

(3)

Statements, memoranda, work products, documents and other materials, otherwise subject to discovery, that were not prepared specifically for use in a mediation, are not confidential.

(4)

Any document that, before its use in a mediation, was a public record as defined in ORS 192.311 (Definitions for ORS 192) remains subject to disclosure to the extent provided by ORS 192.311 (Definitions for ORS 192) to 192.478 (Exemption for Judicial Department).

(5)

Any mediation communication relating to child abuse that is made to a person who is required to report child abuse under the provisions of ORS 419B.010 (Duty of officials to report child abuse) is not confidential to the extent that the person is required to report the communication under the provisions of ORS 419B.010 (Duty of officials to report child abuse). Any mediation communication relating to elder abuse that is made to a person who is required to report elder abuse under the provisions of ORS 124.050 (Definitions for ORS 124) to 124.095 (Spiritual treatment not abuse) is not confidential to the extent that the person is required to report the communication under the provisions of ORS 124.050 (Definitions for ORS 124) to 124.095 (Spiritual treatment not abuse).

(6)

A mediation communication is not confidential if the mediator or a party to the mediation reasonably believes that disclosing the communication is necessary to prevent a party from committing a crime that is likely to result in death or substantial bodily injury to a specific person.

(7)

A party to a mediation may disclose confidential mediation communications to a person if the party’s communication with that person is privileged under ORS 40.010 (Rule 100) to 40.585 (Rule 1008) or other provision of law. A party may disclose confidential mediation communications to any other person for the purpose of obtaining advice concerning the subject matter of the mediation, if all parties to the mediation so agree.

(8)

The confidentiality of mediation communications and agreements in a mediation in which a public body is a party, or in which a state agency is mediating a dispute as to which the state agency has regulatory authority, is subject to ORS 36.224 (State agencies), 36.226 (Public bodies other than state agencies) and 36.230 (Public bodies). [1997 c.670 §1]

Notes of Decisions

Nonconfidentiality provision for mediation communications otherwise subject to discovery and not prepared for use in mediation applies only to materials, not to communications made to party or other person involved in mediation proceeding. Bidwell and Bidwell, 173 Or App 288, 21 P3d 161 (2001), Sup Ct review denied

Where plaintiff/mediating party privately communicated with attorney outside mediation proceedings and communications were integrally related to mediation, those communications were not “mediation communications,” which include only communications between persons listed in statute while persons are present at mediation proceedings, that occur during time mediation is underway and that relate to substance of dispute being mediated. Alfieri v. Solomon, 358 Or 383, 365 P3d 99 (2015)

Source

Last accessed
Mar. 11, 2023

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