2017 ORS 36.222¹
Admissibility and disclosure of mediation communications and agreements in subsequent adjudicatory proceedings

(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), mediation communications and mediation agreements that are confidential under ORS 36.220 (Confidentiality of mediation communications and agreements) to 36.238 (Application of ORS 36.210 and 36.220 to 36.238) are not admissible as evidence in any subsequent adjudicatory proceeding, and may not be disclosed by the parties or the mediator in any subsequent adjudicatory proceeding.

(2) A party may disclose confidential mediation communications or agreements in any subsequent adjudicative proceeding if all parties to the mediation agree in writing to the disclosure.

(3) A mediator may disclose confidential mediation communications or confidential mediation agreements in a subsequent adjudicatory proceeding if all parties to the mediation, the mediator, and the mediation program, if any, agree in writing to the disclosure.

(4) In any proceeding to enforce, modify or set aside a mediation agreement, confidential mediation communications and confidential mediation agreements may be disclosed 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.

(5) In an action for damages or other relief between a party to a mediation and a mediator or mediation program, confidential mediation communications or confidential mediation agreements may be disclosed 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.

(6) A mediator may disclose confidential mediation communications 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 (Duty of officials to report child abuse) or elder abuse under ORS 124.050 (Definitions for ORS 124.050 to 124.095) to 124.095 (Spiritual treatment not abuse).

(7) The limitations on admissibility and disclosure in subsequent adjudicatory proceedings imposed by this section apply to any subsequent judicial proceeding, administrative proceeding or arbitration proceeding. The limitations on disclosure imposed by this section include disclosure during any discovery conducted as part of a subsequent adjudicatory proceeding, and no person who is prohibited from disclosing information under the provisions of this section may be compelled to reveal confidential communications or agreements in any discovery proceeding conducted as part of a subsequent adjudicatory proceeding. Any confidential mediation communication or agreement that may be disclosed in a subsequent adjudicatory proceeding under the provisions of this section may be introduced into evidence in the subsequent adjudicatory proceeding. [1997 c.670 §2]

Notes of Decisions

Where plaintiff/mediating party and plaintiff’s attorney held private discussions outside media­tion pro­ceed­ings, even though media­tion pro­ceed­ings were ongoing, those discussions were not “media­tion communica­tions” as used in ORS 36.110 (Definitions for ORS 36.100 to 36.238) so were not confidential under this sec­tion nor inadmissible under ORS 36.222 (Admissibility and disclosure of mediation communications and agreements in subsequent adjudicatory proceedings). 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 (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 36, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano036.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.