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DEPARTMENT OF JUSTICE

 


DIVISION 5
COLLABORATIVE DISPUTE RESOLUTION MODEL RULES

137-005-0010
Use of Collaborative Dispute Resolution Processes
(1) Unless otherwise precluded by law, the agency may, in its discretion, use a collaborative dispute resolution process in contested cases, rulemaking proceedings, judicial proceedings, and any other decision-making or policy development process or controversy involving the agency. Collaborative dispute resolution may be used to prevent or to minimize the escalation of disputes and to resolve disputes once they have occurred.
(2) Nothing in this rule limits innovation and experimentation with collaborative or alternative forms of dispute resolution, with negotiated rulemaking or with other procedures or dispute resolution practices not otherwise prohibited by law.
(3) The collaborative means of dispute resolution may be facilitated negotiation, mediation, facilitation or any other method designed to encourage the agency and the other participants to work together to develop a mutually agreeable solution. The agency may also consider using neutral fact-finders in an advisory capacity.
(4) The agency shall not agree to any dispute resolution process in which its ultimate settlement or decision making authority is given to a third party, including arbitration or fact-finding, without prior written authorization from the Attorney General.
(5) Nothing in this rule obligates the agency to offer funds to settle any case, to accept a particular settlement or resolution of a dispute, to alter its standards for accepting settlements, to submit to binding arbitration, or to alter any existing delegation of settlement or litigation authority.
Stat. Auth.: ORS 183.341 & ORS 183.502

Stats. Implemented: ORS 183.502

Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97
137-005-0020
Assessment for Use of Collaborative DR Process
(1) Before instituting a collaborative dispute resolution process, the agency may conduct an assessment to determine if a collaborative process is appropriate for the controversy and, if so, under what conditions.
(2) A collaborative DR process may be appropriate if:
(a) The relationship between the parties will continue beyond the resolution of the controversy and a collaborative DR process is likely to have a favorable effect on the relationship;
(b) There are outcomes or solutions that are only available through a collaborative process;
(c) There is a reasonable likelihood that a collaborative process will result in an agreement;
(d) The implementation and durability of any resolution to the controversy will likely require ongoing, voluntary cooperation of the participants;
(e) A candid or confidential discussion among the disputants may help resolve the controversy, and OAR 137-005-0050 may provide for such candor or confidentiality;
(f) Direct negotiations between the parties have been unsuccessful or could be improved with the assistance of a collaborative DR provider;
(g) No single agency or jurisdiction has complete control over the issue and a collaborative process is likely to be effective in reconciling conflicts over jurisdiction and control; or
(h) The agency has limited time or other resources, and a collaborative process would use less agency resources, take less time or be more efficient than another type of process.
(3) A collaborative DR process may not be appropriate if:
(a) The outcome of the controversy is important for its precedential value, and a collaborative DR process is unlikely to be accepted as an authoritative precedent;
(b) There are significant unresolved legal issues in this controversy, and a collaborative DR process is unlikely to be effective if those legal issues are not resolved first;
(c) The controversy involves significant questions of agency policy, and it is unlikely that a collaborative DR process will help develop or clarify agency policy;
(d) Maintaining established policies and consistency among decisions is important, and a collaborative DR process likely would result in inconsistent outcomes for comparable matters;
(e) The controversy significantly affects persons or organizations who are not participants in the process or whose interests are not adequately represented by participants;
(f) A public record of the proceeding is important, and a collaborative DR process cannot provide such a record;
(g) The agency must maintain authority to alter the disposition of the matter because of changed circumstances, and a collaborative DR process would interfere with the agency's ability to do so;
(h) The agency must act quickly or authoritatively to protect the public health or safety, and a collaborative dispute resolution process would not provide the necessary speed and authority to do this.
(i) The agency has limited time or other resources, and a collaborative process would use more agency resources, take longer or be less efficient than another type of process; or
(j) None of the factors in section (2) apply.
(4) The assessment may also be used to:
(a) Determine or clarify the nature of the controversy or the issues to be resolved;
(b) Match a dispute resolution process to the objectives and interests of the disputants;
(c) Determine who will participate in the process;
(d) Estimate the time and resources needed to implement a collaborative DR process;
(e) Assess the potential outcomes of a collaborative DR process and the desirability of those outcomes;
(f) Determine the likely means for enforcing any agreement or settlement that may result;
(g) Determine the compensation, if any, of the dispute resolution provider;
(h) Determine the ground rules for the collaborative DR process; and
(i) Determine the degree to which the parties and the agency wish, and are legally able, to keep the proceedings confidential.
(5) The agency may contract with a collaborative DR provider pursuant to OAR 137-005-0040 to assist the agency in conducting the assessment and may request that the provider prepare a written report summarizing the results of the assessment.
Stat. Auth.: ORS 183.341 & ORS 183.502

Stats. Implemented: ORS 183.502

Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2001, f. & cert. ef. 10-3-01
137-005-0022
Assessment for Use of Collaborative DR Process in Complex Public Policy Controversies
(1) For the purposes of this rule, "complex public policy controversy" means a multi-party controversy that includes at least one governmental participant and that affects the broader public, rather than only a single group or individual.
(2) Before using a collaborative process to resolve a complex public policy controversy, the agency may conduct an assessment to determine if a collaborative DR process is appropriate and, if so, under what conditions. In addition to the factors in OAR 137-005-0020, the agency may use the assessment to consider if:
(a) The agency is interested in joint problem solving or in reaching a consensus among participants, and not solely in obtaining public comment, consultation or feedback, which may be addressed through other processes;
(b) The persons, interest groups or entities significantly affected by the controversy or by any agreement resulting from the collaborative DR process
(A) Can be readily identified;
(B) Are willing to participate in a collaborative process; and
(C) Have the time, resources and ability to participate effectively in a collaborative process and in the implementation of any agreement that may result from the collaborative process;
(c) The persons identified as representing the interests of a group of persons or of an organization have sufficient authority to negotiate a durable agreement on behalf of the group or organization they represent; or
(d) There are ongoing or proposed legislative, political or legal activities that would significantly undermine the value of the collaborative process or the durability of any collaborative agreement.
(3) The agency may contract with a collaborative DR provider pursuant to OAR 137-005-0040 to assist the agency in conducting all or part of the assessment under section (1) and may request that the provider prepare a written report summarizing the results of the assessment.
Stat. Auth.: ORS 183.341 & ORS 183.502

Stats. Implemented: ORS 183.502

Hist.: DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00
137-005-0030
Agreement to Collaborate
In preparation for, or in the course of, a collaborative DR process the agency and the other participants may enter into a written agreement to collaborate. This agreement may include:
(1) A brief description of the dispute or the issues to be resolved;
(2) A list of the participants;
(3) A description of the proposed collaborative DR process;
(4) An estimated starting date and ending date for the process;
(5) A statement whether the collaborative DR provider will receive compensation and, if so, who will be responsible for its payment;
(6) A description of the process, including, but not limited to: the role of witnesses, and whether and how counsel may participate in the process;
(7) Consistent with applicable statute and rules, a statement regarding the degree to which the proceedings or communications made during the course of the collaborative DR process are confidential; and
(8) A description of the likely means of enforcing any agreement or settlement that may result.
Stat. Auth.: ORS 183.341 & ORS 183.502

Stats. Implemented: ORS 183.502

Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2001, f. & cert. ef. 10-3-01
137-005-0040
Selection and Procurement of Dispute Resolution Providers
(1) The agency may select the collaborative DR provider or may opt to select the provider by consensus of the participants.
(2) A collaborative DR provider who has a financial interest in the subject matter of the dispute, who is an employee of an agency in the dispute, who has a financial relationship with any participant in the collaborative DR process or who otherwise may not be impartial is considered to have a potential bias. If, before or during the dispute resolution process, a provider has or acquires a potential bias, the provider shall so inform all the participants. Any participant may disqualify a provider who has a potential bias if the participant believes in good faith that the potential bias will undermine the ability of the provider to be impartial throughout the process.
(3) If the collaborative DR provider is a public official as defined by ORS 244.020(15), the provider shall comply with the requirements of ORS Chapter 244.
(4) If the agency procures the services of a collaborative DR provider, the agency must comply with all procurement and contracting rules provided by law. A roster of collaborative DR providers and a simplified mediator and facilitator procurement process developed by the Department of Justice may be used by the agency when selecting a collaborative DR provider.
(5) If the collaborative DR provider is a mediator or facilitator who is not an employee of the agency, the participants shall share the costs of the provider, unless the participants agree otherwise or the provider is retained solely by the agency or by a non-participant.
(6) Whenever the agency compensates a provider who is not an employee of the agency, the state must execute a personal services contract with the provider. If the agency and the other participants choose to share the cost of the collaborative DR provider's services, the non-agency participants may enter into their own contract with the provider or may be a party to the contract between the agency and the provider, at the discretion of the agency. The agency's contract with a provider must state:
(a) The name and address of the provider and the contracting agency;
(b) The nature of the dispute, the issues being submitted to the collaborative DR process and the identity of the participants, as well as is known at the time the contract is signed;
(c) The services the provider will perform (scope of work);
(d) The compensation to be paid to the provider and the maximum contract amount;
(e) The beginning and ending dates of the contract and that the contract may be terminated by the agency or the provider upon mutual written consent, or at the sole discretion of the agency upon 30 calendar days notice to the provider or immediately if the agency determines that the DR process is unable to proceed for any reason.
(7) A student, intern or other person in training or assisting the provider may function as a co-provider in a dispute resolution proceeding. The co-provider shall sign and be bound by the agreement to collaborate specified in OAR 137-005-0030, if any, and, if compensated by the agency, a personal services contract as specified in section (6) of this rule.
Stat. Auth.: ORS 183.341 & 183.502

Stats. Implemented: ORS 183.502

Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2001, f. & cert. ef. 10-3-01; DOJ 13-2005, f & cert. ef. 10-31-05; DOJ 11-2007, f. 10-15-07 cert. ef. 1-1-08
137-005-0050
Confidentiality of Collaborative Dispute Resolution Communications
(1) For the purposes of this rule,
(a) “Agreement to mediate”
means a written agreement to mediate executed by the parties establishing the terms
and conditions of the mediation, which may include provisions specifying the extent
to which mediation communications will be confidential.
(b) “Mediation”
means a process in which a mediator assists and facilitates two or more parties
to a controversy in reaching a mutually acceptable resolution of the controversy
and includes all contacts between a mediator and any party or agent of a party,
until such time as a resolution is agreed to by the parties or the mediation process
is terminated.
(c) “Mediation agreement”
means an agreement arising out of a mediation, including any term or condition of
the agreement.
(d) “Mediation communication”
means:
(A) All communications that
are made, in the course of or in connection with a mediation, to a mediator, a mediation
program or a party to, or any other person present at, the mediation proceedings;
and
(B) All memoranda, work products,
documents and other materials, including any draft mediation agreement, that are
prepared for or submitted in the course of or in connection with a mediation or
by a mediator, a mediation program or a party to, or any other person present at,
mediation proceedings.
(e) “Mediator”
means a third party who performs mediation. Mediator includes agents and employees
of the mediator or mediation program.
(f) “Party” means
a person or agency participating in a mediation who has a direct interest in the
controversy that is the subject of the mediation. A person or agency is not a party
to a mediation solely because the person or agency is conducting the mediation,
is making the mediation available or is serving as an information resource at the
mediation.
(2) If the agency is a party
to a mediation or is mediating a dispute as to which the agency has regulatory authority:
(a) The agency may choose
to adopt either or both the Model Rule for Confidentiality and Inadmissibility of
Mediation Communications in OAR 137-050-0052 or the Model Rule for Confidentiality
and Inadmissibility of Workplace Interpersonal Mediation Communications in 137-050-0054,
in which case mediation communications shall be confidential to the extent provided
in those rules. The agency may adopt the rules by reference without complying with
the rulemaking procedures under ORS 183.335. Notice of such adoption shall be filed
with the Secretary of State in the manner provided by ORS 183.355 for the filing
of rules.
(b) If the agency has not
adopted confidentiality rules pursuant to ORS 36.220 to 36.238, mediation communications
shall not be confidential unless otherwise provided by law, and the agency shall
inform the parties in the mediation of that fact in an agreement to collaborate
pursuant to OAR 137-005-0030 or other document.
(3) If the agency is mediating
a dispute as to which the agency is not a party and does not have regulatory authority,
mediation communications are confidential, except as provided in ORS 36.220 to 36.238.
The agency and the other parties to the mediation may agree in writing that all
or part of the mediation communications are not confidential. Such an agreement
may be made a part of an agreement to collaborate authorized by OAR 137-005-0030.
(4) If the agency and the
other participants in a collaborative DR process other than a mediation wish to
make confidential the communications made during the course of the collaborative
DR process:
(a) The agency, the other
participants and the collaborative DR provider, if any, shall sign an agreement
to collaborate pursuant to OAR 137-005-0030 or any other document that expresses
their intent with respect to:
(A) Disclosures by the agency
and the other participants of communications made during the course of the collaborative
DR process;
(B) Disclosures by the collaborative
DR provider of communications made during the course of the collaborative DR process;
(C) Any restrictions on the
agency’s use of communications made during the course of the collaborative
DR process in any subsequent administrative proceeding of the agency; and
(D) Any restrictions on the
ability of the agency or the other participants to introduce communications made
during the course of the collaborative DR process in any subsequent judicial or
administrative proceeding relating to the issues in controversy with respect to
which the communication was made.
(b) Notwithstanding any agreement
under subsection (4)(a) of this rule, communications made during the course of a
collaborative DR process:
(A) May be disclosed if the
communication relates to child abuse and is made to a person who is required to
report abuse under ORS 419B.010 to the extent the person is required to report the
communication;
(B) May be disclosed if the
communication relates to elder abuse and is made to a person who is required to
report abuse under ORS 124.050 to 124.095 to the extent the person is required to
report the communication;
(C) May be disclosed if the
communication reveals past crimes or the intent to commit a crime;
(D) May be disclosed by a
party to a collaborative DR process to another person if the party’s communication
with that person is privileged under ORS Chapter 40 or other provision of law;
(E) May be used by the agency
in any subsequent proceeding to enforce, modify or set aside an agreement arising
out of the collaborative DR process;
(F) May be disclosed in an
action for damages or other relief between a party to a collaborative DR process
and a DR provider to the extent necessary to prosecute or defend the matter; and
(G) Shall be subject to the
Public Records Law, ORS 192.410 to 192.505, and the Public Meetings Law, ORS 192.610
to 192.690.
(c) If a demand for disclosure
of a communication that is subject to an agreement under this section is made upon
the agency, any other participant or the collaborative DR provider, the person receiving
the demand for disclosure shall make reasonable efforts to notify the agency, the
other participants and the collaborative DR provider.
Stat. Authority: ORS 183.341 & 183.502;
OL 2015, ch 114 (SB 189)
Stats. Implemented: ORS 36.110
& 36.220 - 36.238; 2015 SB 189
Hist.: JD 3-1997, f. 9-4-97,
cert. ef. 9-15-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 7-2015(Temp),
f. 5-22-15, cert. ef. 5-26-15 thru 11-21-15; DOJ 13-2015, f. & cert. ef. 10-27-15
137-005-0052
Confidentiality and Inadmissibility
of Mediation Communications
(1) The words and phrases used in this
rule have the same meaning as given to them in ORS 36.110 and 36.234.
(2) Nothing in this rule
affects any confidentiality created by other law. Nothing in this rule relieves
a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690.
Whether or not they are confidential under this or other rules of the agency, mediation
communications are exempt from disclosure under the Public Records Law to the extent
provided in ORS 192.410 to 192.505.
(3) This rule applies only
to mediations in which the agency is a party or is mediating a dispute as to which
the agency has regulatory authority. This rule does not apply when the agency is
acting as the "mediator" in a matter in which the agency also is a party as defined
in ORS 36.234.
(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 40.190
(OEC Rule 408), notwithstanding any provisions to the contrary in section (8) of
this rule.
(5) Mediations Excluded.
Sections (6) (9) of this rule do not apply to:
(a) Mediation of workplace
interpersonal disputes involving the interpersonal relationships between this agency's
employees, officials or employees and officials, unless a formal grievance under
a labor contract, a tort claim notice or a lawsuit has been filed; or
(b) Mediation in which the
person acting as the mediator will also act as the hearings officer in a contested
case involving some or all of the same matters; or
(c) Mediation in which the
only parties are public bodies; or
(d) Mediation in which two
or more public bodies and a private entity are parties if the laws, rule or policies
governing mediation confidentiality for at least one of the public bodies provide
that mediation communications in the mediation are not confidential; or
(e) Mediation involving 15
or more parties if the agency has designated that another mediation confidentiality
rule adopted by the agency may apply to that mediation.
(6) 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)–(d), (j)–(l), (o)–(p) and (r)–(s) of
section (8) of this rule.
(7) Confidentiality and Inadmissibility
of Mediation Communications. Except as provided in section (8) of this rule, mediation
communications 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 as evidence by the parties or
the mediator in any subsequent proceeding so long as:
(a) The parties to the mediation
sign an agreement to mediate specifying the extent to which mediation communications
are confidential; and,
(b) If the mediator is the
employee of or acting on behalf of a state agency, the mediator or an authorized
representative of the agency signs the agreement.
(8) 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 document that, before
its use in a mediation, was a public record as defined in ORS 192.410 remains subject
to disclosure to the extent provided by ORS 192.410 to 192.505 and may be introduced
into evidence in a subsequent proceeding.
(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) Any mediation communication
related to the conduct of a licensed professional that is made to or in the presence
of a person who, as a condition of his or her professional license, is obligated
to report such communication by law or court rule is not confidential and may be
disclosed to the extent necessary to make such a report.
(e) 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.
(f) 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.
(g) An employee of the agency
may disclose confidential mediation communications to another agency employee so
long as the disclosure is necessary to conduct authorized activities of the agency.
An employee receiving a confidential mediation communication under this subsection
is bound by the same confidentiality requirements as apply to the parties to the
mediation.
(h) 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.
(i) 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.
(j) 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.
(k) When a mediation is conducted
as part of the negotiation of a collective bargaining agreement, the following mediation
communications are not confidential and such communications may be introduced into
evidence in a subsequent administrative, judicial or arbitration proceeding:
(A) A request for mediation,
or
(B) A communication from
the Employment Relations Board Conciliation Service establishing the time and place
of mediation, or
(C) A final offer submitted
by the parties to the mediator pursuant to ORS 243.712, or
(D) A strike notice submitted
to the Employment Relations Board.
(l) 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.
(m) Written mediation communications
prepared by or for the agency or its attorney are not confidential and may be disclosed
and may be introduced as evidence in any subsequent administrative, judicial or
arbitration proceeding to the extent the communication does not contain confidential
information from the mediator or another party, except for those written mediation
communications that are:
(A) Attorney client privileged
communications so long as they have been disclosed to no one other than the mediator
in the course of the mediation or to persons as to whom disclosure of the communication
would not waive the privilege, or
(B) Attorney work product
prepared in anticipation of litigation or for trial, or
(C) Prepared exclusively
for the mediator or in a caucus session and not given to another party in the mediation
other than a state agency, or
(D) Prepared in response
to the written request of the mediator for specific documents or information and
given to another party in the mediation, or
(E) Settlement concepts or
proposals, shared with the mediator or other parties.
(n) A mediation communication
made to the agency may be disclosed and may be admitted into evidence to the extent
the agency director, administrator or board determines that disclosure of the communication
is necessary to prevent or mitigate a serious danger to the public's health or safety,
and the communication is not otherwise confidential or privileged under state or
federal law.
(o) The terms of any mediation
agreement are not confidential and may be introduced as evidence in a subsequent
proceeding, except to the extent the terms of the agreement are exempt from disclosure
under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under
ORS 17.095 or state or federal law requires the terms to be confidential.
(p) In any mediation in a
case that that has been filed in court or when a public body’s role in a mediation
is solely to make mediation available to the parties the mediator may report the
disposition of the mediation to that public body or court at the conclusion of the
mediation so long as the report does not disclose specific confidential mediation
communications. The agency conducting the mediation or making the mediation available
or the mediator may use or disclose confidential mediation communications for research,
training or educational purposes, subject to the provisions of ORS 36.232.
(q) An agreement to mediate
is not confidential and may be introduced into evidence in a subsequent proceeding.
(r) Any mediation communication
relating to child abuse that is made to a person required to report child abuse
under ORS 419B.010 is not confidential to the extent that the person is required
to report the communication.
(s) Any mediation communication
relating to elder abuse that is made to a person who is required to report elder
abuse under ORS 124.050 to 124.095 is not confidential to the extent that the person
is required to report the communication.
(9) When a mediation is subject
to section (7) of this rule, the agency will provide to all parties to the mediation
and the mediator a copy of this rule or a citation to the rule and an explanation
of where a copy of the rule may be obtained. The agreement to mediate also must
refer to this rule. Violation of this provision does not waive confidentiality or
inadmissibility.
Stat. Auth.: ORS 36.224, OL 2015, ch
114 (SB 189)
Stats. Implemented: ORS 36.224,
36.228, 36.230, 36.232, OL 2015, ch 114 (SB 189)
Hist.: DOJ 7-2015(Temp),
f. 5-22-15, cert. ef. 5-26-15 thru 11-21-15; DOJ 13-2015, f. & cert. ef. 10-27-15
137-005-0054
Confidentiality and Inadmissibility
of Workplace Interpersonal Mediation Communications
(1) This rule applies to workplace interpersonal
disputes, which are disputes involving the interpersonal relationships between this
agency’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 rule.
(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)–(l) 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 agency 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 agency:
(A) Is neither a party to
the dispute nor the mediator; and
(B) Is designated by the
agency to authorize confidentiality for the mediation; and
(C) Is at the same or higher
level in the agency than any of the parties to the mediation or who is a person
with responsibility for human resources or personnel matters in the agency, unless
the agency 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 agency at the conclusion of the mediation
so long as the report does not disclose specific confidential mediation communications.
The agency or the mediator may use or disclose confidential mediation communications
for research, training or educational purposes, subject to the provisions of ORS
36.232.
(k) Any mediation communication
relating to child abuse that is made to a person required to report abuse under
ORS 419B.010 is not confidential to the extent that the person is required to report
the communication.
(l) Any mediation communication
relating to elder abuse that is made to a person who is required to report abuse
under ORS 124.050 to 124.095 is not confidential to the extent that the person is
required to report the communication.
(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 agency 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 agency, may not be made confidential.
(9) When a mediation is subject
to section (6) of this rule, the agency 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. The mediation confidentiality agreement must also refer to
this rule. Violation of this provision does not waive confidentiality or inadmissibility.
Stat. Auth.: ORS 36.224, OL 2015, ch
114 (SB 189)
Stats. Implemented: ORS 36.230(4),
OL 2015, ch 114 (SB 189)
Hist.: DOJ 7-2015(Temp),
f. 5-22-15, cert. ef. 5-26-15 thru 11-21-15; DOJ 13-2015, f. & cert. ef. 10-27-15
137-005-0060
Mediation
(1) Unless otherwise provided by law, mediation is a voluntary process from which the agency and other participants may withdraw at any time.
(2) The mediator does not represent the interests of any of the participants or offer legal advice. Likewise, the mediator is not a judge and has no decision making power to impose a settlement on the participants or to render decisions.
(3) The person participating in the mediation on behalf of the agency shall be knowledgeable about the issues in dispute and have authority to effectively recommend settlement options to the agency.
Stat. Auth.: ORS 183.341 & ORS 183.502

Stats. Implemented: ORS 183.502

Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; JD 3-1997, f. 9-4-97, cert. ef. 9-15-97
137-005-0070
Contract Clauses Specifying Dispute Resolution
(1) The agency may specify or require any form of dispute resolution except binding arbitration as a condition of a contract.
(2) The agency may specify binding arbitration by contract only if the Attorney General has approved the contract containing the clause specifying binding arbitration and the clause itself for legal sufficiency.
(3) The agency may provide for the resolution of technical, scientific or accounting matters of fact by requiring the submission of such matters to a neutral fact finder selected and appointed as specified in a contract clause.
(4) The specification of a method of dispute resolution in a contract clause does not:
(a) Remove the requirement to provide notices or filings or to meet deadlines otherwise required by law, regulation or contract provision;
(b) Constitute a waiver of the sovereign immunity of the State of Oregon; or
(c) Prohibit the participants from entering into an agreement to use any other method of dispute resolution that appears to be more suitable for the particular dispute in lieu of or in addition to the method specified by contract.
Stat. Auth.: ORS 183.341 & ORS 183.502

Stats. Implemented: ORS 183.502

Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97

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