§ RULE 514 MEDIATOR'S PRIVILEGE

RULE 514. MEDIATOR'S PRIVILEGE

(a) Definitions. As used in this rule:

(1) A “mediating party” is a person who is participating in a mediation proceeding as a party or as a representative of a party, regardless of whether the subject matter of that proceeding is in litigation.

(2) A “mediation” is any process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute, whether or not the dispute is the subject of litigation.

(3) A “mediator” is a neutral person conducting the mediation proceeding in the capacity of mediator.

This Rule shall be subject to provisions of state and federal statutes and regulations issued thereunder for mediations taking place pursuant to such statutory authority.

(b) Mediator Privilege. All memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation.

(1) Mediated agreement. For a communication that is in an agreement evidenced by a record signed by all parties to the agreement.

(2) Furtherance of crime or fraud. If the services of the mediator were sought or obtained to enable or aid anyone to commit or plan to commit or to what the mediating party knew or reasonably should have known to be a crime or fraud, or to conceal an ongoing crime or ongoing criminal activity.

(3) Plan to inflict harm. For threats or statements of an intention to inflict bodily injury or commit a crime.

(4) Mediator misconduct. For communications sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator.

(5) Party or counsel misconduct. For communications sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation.

(6) Welfare of child or adult. For communications sought or offered to prove or disprove abuse, neglect, abandonment or exploitation in a criminal proceeding or a child or adult protective action.

(7) Manifest injustice. For communications that a court, administrative agency, or arbitrator finds, after a hearing in camera, that the disclosure of which is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of a sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.