Confidentiality considerations for mediation and facilitation involving Oregon state agencies:
- Mediation Confidentiality Bulletin
- Confidentiality Rules
- List of Agencies
- Model Rule 137-005-0050
- Model Agreement To Mediate
Mediation Confidentiality Bulletin
The Mediation Confidentiality Bulletin describes the legal and practical considerations for state agency participation in confidential mediations.
ORS 36.220 to 36.238 authorize state agencies to make mediation communications confidential. The statutes also allow agencies to limit the discovery and admissibility of mediation communications in subsequent proceedings. Except for certain workers compensation mediations, the confidentiality and inadmissibility provisions of these statutes are available to state agencies only by adopting, mediation confidentiality rules developed by the Attorney General.
Mediation Confidentiality Rules Developed by the Attorney General as Authorized By ORS 36.224
ORS 36.220 through 36.238 authorize state agency participation in a confidential mediation. For most agencies, the confidentiality and inadmissibility provisions of this law are available only by adopting rules developed by the Attorney General pursuant to ORS 36.224. The Attorney General has developed two mediation confidentiality rules: A rule for the mediation of workplace interpersonal disputes and a rule covering most other mediations. Agencies may adopt either rule or both rules. With the passage of SB 189 (2015) » the adoption of mediation confidentiality rules has changed. This webpage explains those changes. The most current rules were adopted on October 27th, 2015 and can be found below. See 137-005-0050 » regarding the process for adoption of mediation confidentiality rules.
- OAR 137-005-0052 – Confidentiality and Inadmissibility of Mediation Communications » (Permanent Rule, Effective Oct 27, 2015)
- OAR 137-005-0054 – Confidentiality and Inadmissibility of Workplace Interpersonal Mediation Communications » (Permanent Rule, Effective Oct 27, 2015)
Mediation Confidentiality Rules Adopted Prior to May 22, 2015
Many state agencies adopted mediation confidentiality rules prior to the passage of SB 189 (2015). See List of Agencies below. Agencies that have previously adopted mediation confidentiality rules may still rely on those rules.
Temporary Mediation Confidentiality Rules, Effective May 22, 2015
In order to comply with ORS 36.224 as amended by SB 189 (2015) the Attorney General adopted temporary mediation confidentiality rules 137-005-0052 and 137-005-0054 and amended model rule 137-005-0050 on May 22, 2015. These temporary mediation confidentiality rules are substantially similar to the previous mediation confidentiality rules in 2014. As noted above, agencies who adopted a mediation confidentiality rule prior to May 22, 2015 may still rely on those rules.
- OAR 137-005-0052 – Confidentiality and Inadmissibility of Mediation Communications » (Temporary Model Rule effective May 22, 2015)
- OAR 137-005-0054 – Confidentiality and Inadmissibility of Workplace Interpersonal Mediation Communications » (Temporary Model Rule effective May 22, 2015)
2015 and 2016 Mediation Confidentiality Rulemaking Activity
A Rulemaking Advisory Committee was convened to review the May 22, 2015 temporary rules and make recommendations for permanent rules that were adopted on October 27th, 2015. The Advisory Committee also met twice in 2016 to discuss issues related to state agency mediation confidentiality that were raised during the earlier rulemaking. See committee documents below:
Advisory Committee Meeting, July 16, 2015
Rulemaking Hearing October 22, 2015
- Cover Letter To Interested Parties
- Notice of Rulemaking Hearing
- Statement of Need and Fiscal Impact
- Redlined Rule
Advisory Committee Meeting for March 14, 2016 (2-4 pm in the DOJ Robertson Building. 1215 State Street, Salem, Oregon)
Advisory Committee Meeting for April 21, 2016 (2-4 pm in the DOJ Robertson Building. 1215 State Street, Salem, Oregon)
List of Agencies
The following list is provided as a convenience and no assurance is made as to its completeness or accuracy. For the most current version of agency administrative rules see Oregon Secretary of State – Administrative Rules ».
Model Rule 137-005-0050
- Model Rule 137-005-0050 » “Confidentiality of Collaborative Dispute Resolution Communications”
Model Agreement To Mediate
The following template was prepared by the Department of Justice for use by its client state agencies. This “Version A” is intended for use in mediations in which an Oregon state agency is a party, at least one non-public body entity is also a party to the mediation and an independent third-party is the mediator. It assumes that the parties are seeking the maximum confidentiality available and that all state agencies who are parties to this mediation have adopted mediation confidentiality rules as required by ORS 36.224.