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 36.210 and 36.220 to 36.238):

(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 36.210 and 36.220 to 36.238):

(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 192.311 to 192.478) remains subject to disclosure to the extent provided by ORS 192.311 (Definitions for ORS 192.311 to 192.478) 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 124.050 to 124.095) 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 124.050 to 124.095) 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. Short title) to 40.585 (Rule 1008. Functions of court and jury) 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]

Source: Section 36.220 — Confidentiality of mediation communications and agreements; exceptions, https://www.­oregonlegislature.­gov/bills_laws/ors/ors036.­html.

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)

36.100
Policy for ORS 36.100 to 36.238 36.105
Declaration of purpose of ORS 36.100 to 36.238 36.110
Definitions for ORS 36.100 to 36.238 36.135
Review of dispute resolution programs 36.145
Dispute Resolution Account 36.150
Additional funding 36.155
Grants for dispute resolution services in counties 36.160
Participation by counties 36.165
Termination of county participation 36.175
Rules for administration of dispute resolution programs 36.179
Mediation and other alternative dispute resolution services for public bodies 36.185
Referral of civil dispute to mediation 36.190
Stipulation to mediation 36.195
Presence of attorney 36.200
Mediation panels 36.210
Liability of mediators and programs 36.220
Confidentiality of mediation communications and agreements 36.222
Admissibility and disclosure of mediation communications and agreements in subsequent adjudicatory proceedings 36.224
State agencies 36.226
Public bodies other than state agencies 36.228
Mediations in which two or more public bodies are parties 36.230
Public bodies 36.232
Disclosures allowed for reporting, research, training and educational purposes 36.234
Parties to mediation 36.236
Effect on other laws 36.238
Application of ORS 36.210 and 36.220 to 36.238 36.252
Agricultural mediation services coordinated by State Department of Agriculture 36.254
Contracts for mediation services 36.256
Request for mediation services 36.258
Duties of mediator 36.260
Mediation agreement 36.262
Confidentiality of mediation materials 36.264
Civil immunity for mediators and mediation service providers 36.266
Suspension of court proceedings during mediation 36.268
Provision of mediation services contingent on funding 36.280
Mediation of disputes related to interference with farming practices 36.283
Confidentiality of mediation communications and agreement 36.400
Mandatory arbitration programs 36.405
Referral to mandatory arbitration 36.410
Stipulation for arbitration 36.415
Arbitration after waiver of amount of claim exceeding $50,000 36.420
Notice of arbitration hearing 36.425
Filing of decision and award 36.450
Definitions for ORS 36.450 to 36.558 36.452
Policy 36.454
Application of ORS 36.450 to 36.558 36.456
Construction of ORS 36.450 to 36.558 36.458
When written communication considered to have been received 36.460
Waiver of objection to arbitration 36.462
Prohibition on intervention by court 36.464
Venue 36.466
Arbitration agreements to be in writing 36.468
Application to stay judicial proceedings and compel arbitration 36.470
Interim judicial relief 36.472
Number of arbitrators 36.474
Procedure for appointment of arbitrators 36.476
Disclosure by proposed arbitrators and conciliators 36.478
Procedure for challenging arbitrator 36.480
Withdrawal of arbitrator 36.482
Substitute arbitrator 36.484
Arbitral tribunal may rule on own jurisdiction 36.486
Interim measures of protection ordered by arbitral tribunal 36.488
Fairness in proceedings 36.490
Procedures subject to agreement by parties 36.492
Place of arbitration 36.494
Commencement of arbitral proceedings 36.496
Language used in proceedings 36.498
Contents of statements by claimant and respondent 36.500
Oral hearing 36.502
Effect of failure to make required statement or to appear at oral hearing 36.504
Appointment of experts 36.506
Circuit court assistance in taking evidence 36.508
Choice of laws 36.510
Decision of arbitral tribunal 36.512
Settlement 36.514
Arbitral award 36.516
Termination of arbitral proceedings 36.518
Correction of errors in award 36.520
Setting aside award 36.522
Enforcement of award 36.524
Grounds for refusal to enforce award 36.526
Provisions to be interpreted in good faith 36.528
Policy to encourage conciliation 36.530
Guiding principles of conciliators 36.532
Manner of conducting conciliation proceedings 36.534
Draft conciliation settlement 36.536
Prohibition on use of statements, admissions or documents arising out of conciliation proceedings 36.538
Conciliation to act as stay of other proceedings 36.540
Termination of conciliation proceedings 36.542
Conciliator not to be arbitrator or take part in arbitral or judicial proceedings 36.544
Submission to conciliation not waiver 36.546
Conciliation agreement to be treated as arbitral award 36.548
Costs of conciliation proceedings 36.550
Payment of costs 36.552
Effect of conciliation on jurisdiction of courts 36.554
Immunities 36.556
Severability 36.558
Short title 36.600
Definitions 36.605
Notice 36.610
Effect of agreement to arbitrate 36.615
Application for judicial relief 36.620
Validity of agreement to arbitrate 36.625
Petition to compel or stay arbitration 36.630
Provisional remedies 36.635
Initiation of arbitration 36.640
Consolidation of separate arbitration proceedings 36.645
Appointment of arbitrator 36.650
Disclosure by arbitrator 36.655
Action by majority 36.660
Immunity of arbitrator 36.665
Arbitration process 36.670
Representation by a lawyer 36.675
Witnesses 36.680
Judicial enforcement of preaward ruling by arbitrator 36.685
Award 36.690
Change of award by arbitrator 36.695
Remedies 36.700
Confirmation of award 36.705
Vacating award 36.710
Modification or correction of award 36.715
Judgment on award 36.720
Jurisdiction 36.725
Venue 36.730
Appeals 36.735
Uniformity of application and construction 36.740
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§ 36.220’s source at oregon​.gov