2015 ORS 36.220¹
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 192.410 (Definitions for ORS 192.410 to 192.505) remains subject to disclosure to the extent provided by ORS 192.410 (Definitions for ORS 192.410 to 192.505) to 192.505 (Exempt and nonexempt public record to be separated).

(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]

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)

Law Review Cita­tions

33 WLR 703 (1997)


1 Legislative Counsel Committee, CHAPTER 36—Mediation and Arbitration, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors036.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 36, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano036.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.