Oregon University System,
Oregon State University Chapter 576
Caption: Confidentiality and
Inadmissibility of Workplace Interpersonal Dispute Mediation Communications.
Order No.: OSU 7-2011(Temp)
Filed with Sec. of
Certified to be
Effective: 9-22-11 thru 3-20-12
Rules Adopted: 576-001-0060
Subject: Providing for confidentiality and inadmissibility of
workplace interpersonal mediation communications.
Rules Coordinator: Barbara Melton—(541) 737-6262
Inadmissibility of Workplace Interpersonal Dispute Mediation Communications
(1) This rule applies to workplace interpersonal
disputes, which are disputes involving the interpersonal relationships between
the University’s employees, officials or employees and officials. This rule
does not apply to disputes involving the negotiation of labor contracts or
matters about which a tort claim notice or a lawsuit has been filed.
(2) The words and phrases used in this rule have the
same meaning as given to them in ORS 36.110 and 36.234.
(3) Nothing in this rule affects any confidentiality
created by other law.
(4) To the extent mediation communications would
otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those
mediation communications are not admissible as provided in ORS 40.190 (OEC Rule
408), notwithstanding any provisions to the contrary in section (9) of this
(5) Disclosures by Mediator. A mediator may not
disclose or be compelled to disclose mediation communications in a mediation
and, if disclosed, such communications may not be introduced into evidence in
any subsequent administrative, judicial or arbitration proceeding unless
(a) All the parties to the mediation and the mediator
agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or
introduced into evidence in a subsequent proceeding as provided in subsections
(c) or (h)–(j) of section (7) of this rule.
(6) Confidentiality and Inadmissibility of Mediation
Communications. Except as provided in section (7) of this rule, mediation
communications in mediations involving workplace interpersonal disputes are
confidential and may not be disclosed to any other person, are not admissible
in any subsequent administrative, judicial or arbitration proceeding and may
not be disclosed during testimony in, or during any discovery conducted as part
of a subsequent proceeding, or introduced into evidence by the parties or the
mediator in any subsequent proceeding so long as:
(a) The parties to the mediation and the University
have agreed in writing to the confidentiality of the mediation, and;
(b) The person agreeing to the confidentiality of the
mediation on behalf of the University:
(A) Is neither a party to the dispute nor the mediator,
(B) Is designated by the University to authorize
confidentiality for the mediation, and
(C) Is at the same or higher level in the University
than any of the parties to the mediation or who is a person with responsibility
for human resources or personnel matters in the University, unless the
University head or member of the governing board is one of the persons involved
in the interpersonal dispute, in which case the Governor or the Governor’s designee.
(7) Exceptions to confidentiality and inadmissibility.
(a) Any statements, memoranda, work products, documents
and other materials, otherwise subject to discovery that were not prepared
specifically for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public
records, as defined in ORS 192.410(4), and were not specifically prepared for
use in the mediation are not confidential and may be disclosed or introduced
into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and
may be disclosed by any person receiving the communication to the extent that
person reasonably believes that disclosing the communication is necessary to
prevent the commission of a crime that is likely to result in death or bodily
injury to any person. A mediation communication is not confidential and may be
disclosed in a subsequent proceeding to the extent its disclosure may further
the investigation or prosecution of a felony crime involving physical violence
to a person.
(d) The parties to the mediation may agree in writing
that all or part of the mediation communications are not confidential or that
all or part of the mediation communications may be disclosed and may be
introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential, privileged or otherwise prohibited from
disclosure under state or federal law.
(e) A party to the mediation may disclose confidential
mediation communications to a person if the party’s communication with that
person is privileged under ORS Chapter 40 or other provision of law. A party to
the mediation may disclose confidential mediation communications to a person
for the purpose of obtaining advice concerning the subject matter of the mediation,
if all the parties agree.
(f) A written mediation communication may be disclosed
or introduced as evidence in a subsequent proceeding at the discretion of the
party who prepared the communication so long as the communication is not
otherwise confidential under state or federal law and does not contain
confidential information from the mediator or another party who does not agree
to the disclosure.
(g) In any proceeding to enforce, modify or set aside a
mediation agreement, a party to the mediation may disclose mediation
communications and such communications may be introduced as evidence 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.
(h) In an action for damages or other relief between a
party to the mediation and a mediator or mediation program, mediation
communications are not confidential and may be disclosed and may be introduced
as evidence 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
(i) To the extent a mediation communication contains
information the substance of which is required to be disclosed by Oregon
statute, other than ORS 192.410 to 192.505, that portion of the communication
may be disclosed as required by statute.
(j) The mediator may report the disposition of a
mediation to the University at the conclusion of the mediation so long as the
report does not disclose specific confidential mediation communications. The
University or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the
provisions of ORS 36.232(4).
(8) The terms of any agreement arising out of the
mediation of a workplace interpersonal dispute are confidential so long as the
parties and the University so agree in writing. Any term of an agreement that
requires an expenditure of public funds, other than expenditures of $1,000 or
less for employee training, employee counseling or purchases of equipment that
remain the property of the University, may not be made confidential.
(9) When a mediation is subject to section (6) of this
rule, the University will provide to all parties to the mediation and to the
mediator a copy of this rule or an explanation of where a copy of the rule may
be obtained. Violation of this provision does not waive confidentiality or
Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.230(4)
Hist.: OSU 7-2011(Temp), f. &
cert. ef. 9-22-11 thru 3-20-12
Notes 1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.