Rule 408. Compromise Offers and Negotiations

(a) Settlement discussions. Evidence of the following is not admissible— on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) Furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and

(2) Conduct or a statement made during compromise negotiations or in mediation about the claim.

(b) Mediation. Evidence of conduct or statements by any party or mediator at a mediation session:

(1) Undertaken to comply with any statute, court rule, or administrative agency rule;

(2) To which the parties have been referred by a court, administrative agency, or arbitrator; or

(3) In which the parties and mediator have agreed in writing or electronically to mediate with an expectation of confidentiality; Is not admissible in the proceeding with respect to which the mediation was held or in any other proceeding between the parties to the mediation that involves the subject matter of the mediation for any purpose other than to prove: • Fraud; • Duress; • Other cause to invalidate the mediation result; or • Existence of an agreement.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 408 has evolved to become quite different from Federal Rule 408 in form, if not in substance. The restyled Maine Rule brings the language and structure of the Maine Rule back to be more in conformity with the restyled Federal Rule. The proposed restyled Maine Rule follows the Federal Rule in referring to the validity or amount of a disputed claim rather than the prior Maine formulation of "any substantive issue in dispute between the parties." The prior Maine language was inserted to deal with divorce cases and other matters that did not seem to involve monetary "claims." The phrase has been clumsy and opaque in practice, and the federal formulation seems clearer, particularly if "claim" is broadly read as any substantive legal position of a party. Rule 408(b) is unique to Maine and is the result of extended negotiations with the mediation community. Since there is no federal counterpart, and hence no need for Maine-Federal consistency, the proposed restyled version is the same as the existing version.

Federal Advisory Committee Note The language of Rule 408 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc. The Committee deleted the reference to "liability" on the ground that the deletion makes the Rule flow better and easier to read, and because "liability" is covered by the broader term "validity." Courts have not made substantive decisions on the basis of any distinction between validity and liability. No change in current practice or in the coverage of the Rule is intended.

Advisers' Note to former M.R. Evid. 408 (February 2, 1976) This rule declares evidence of a compromise or offer to compromise or of compromise negotiations to be inadmissible on the issue of liability for or amount of a disputed claim. This goes somewhat beyond present Maine law. In Hunter v. Totman, 146 Me. 259, 80 A.2d 401 (1951), it was held that admissibility depends on intention; if the offer is intended to be an admission of liability coupled with an endeavor to settle, it is admissible to prove liability. The rule avoids the need of determining intention and makes the evidence inadmissible without qualification. The purpose is to encourage settlement discussion and to do away with any need for the cautious lawyer to preface a statement with the words "without prejudice". Evidence of a compromise offer may be admissible for another purpose, such as tending to show bias or prejudice of a witness. The Federal Rule omits the reference to "any other claim." It also includes the following sentence: "This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations." The meaning of this sentence is unclear; it seems to state what the law would be if it were omitted. The rule excludes "conduct or statements" made in compromise negotiations. Surely the presentation during negotiations of admissible evidence would not insulate such evidence from use at the trial, as for example when counsel displays a hospital record. If Congress meant "admissible" rather than "discoverable", the sentence is needless. If it intended to refer to the regular discovery procedures, it seems equally needless. If "discoverable" means something that the adversary would not have learned about except for the settlement negotiations, as a layman might use the term, inclusion of the sentence would be indefensible.

Advisory Committee Note (1985 Amendment) By 1985 amendment the applicability of Rule 408 to negotiations in domestic relations matters was made more clear by the amendment of the second sentence of Rule 408(a) to refer to "any substantive issue in dispute." The purpose of this amendment was to negate any implication that "compromise negotiations" referred only to the kinds of claims mentioned in the first sentence of the rule, but included any kind of litigable claim, demand, or defense. Because of the strong public policy favoring free negotiations and free expression of the parties during court-sponsored mediation in domestic relations cases, statements or conduct by any party (including the mediator) occurring during the course of a court-sponsored mediation session are made inadmissible for any purpose.

Advisory Committee Note (February 15, 1993 Amendment) It has been suggested by a variety of sources that conduct and statements made in the course of mediation and other alternative dispute resolution procedures should not be admissible in evidence based upon policies fostering the use of mediation and other alternative dispute resolution procedures. Much of what is said and done by the parties during the course of mediation is protected under Rule 408(a) as it existed prior to the 1992 amendment inasmuch as mediation can be regarded as merely a structured form of compromise negotiations. On the other hand, in view of the high level of interest in mediation confidentiality it may be helpful to make it clear that mediation is entitled to the same level of protection as negotiations carried on directly between the affected parties without the participation of a third party facilitator. It should be noted that this proposed rule revision does not confer any kind of mediator's "privilege." At the time of the enactment of the Rules the Committee restricted its codification of privileges to those which had existed at common law or by statute as of that time. The Committee is reluctant to propose new privileges in the absence of some clear legislative or Court policy indication that such privileges are warranted. Nor does the amendment create an absolute ban on the use of statements or conduct in mediation for all purposes. Thus, statements or conduct in mediation could be admissible where relevant on some nonsubstantive issues such as bias or prejudice of a witness, credibility of a witness and the like. Statements and conduct in court-sponsored compulsory divorce mediation continue to be subject to a broader protection under Rule 408(b). The proposed amendment does not address the discoverability of statements or conduct during mediation, nor does it seek to impose any sort of obligation of confidentiality upon any participant in the mediation process. The scope of discovery is within the purview of the civil and criminal rules committees. Confidentiality is an issue for the Legislature or an authority regulating mediators and is not a proper issue for the Evidence Rules Committee.

Advisory Committee Note (December 2009) This amendment makes major changes in both Rule 408(a) and in Rule 408(b). Rule 408(a) is amended to follow a corresponding change in [Federal Rule of Evidence] 408 and to close a loophole in the prior version. The rule as amended provides that statements and conduct in settlement negotiations that are rendered inadmissible on any substantive issue between the parties may not be used to impeach a witness through prior inconsistent statement or contradiction. Such statements or conduct would not necessarily be inadmissible when offered for some other purpose. Rule 408(a) continues to refer to mediation despite the expansion of Rule 408(b) in order to make clear that the fact that a statement is made during mediation does not deprive it of its character as a statement in compromise negotiations or affect its inadmissibility under Rule 408(a). Rule 408(b) has been rewritten and expanded. The new Rule 408(b) applies not only to court ordered domestic relations mediations, but to all mediations undertaken to comply with any statute, court rule, administrative agency rule. It also covers mediations in which the parties have been referred to mediation by any court, administrative agency or arbitrator, regardless of whether such mediations are provided for by rule. Finally, it covers mediations in which the parties have agreed in writing or electronically (e-mail) to mediate with an expectation of confidentiality. These would include mediations covered by typical mediations agreements with confidentiality clauses. Statements of either parties or mediator in all mediations covered by Rule 408(b) are inadmissible for all purposes other than to prove fraud or duress to invalidate the mediation result both in the proceeding being mediated and in any other proceeding between the parties to the mediation that involves the same subject matter. The rule is designed to encourage parties to speak openly and freely in mediation by assuring them that their statements will not be usable against them in the case being mediated or in any other case between the same parties with the same subject matter. On the other hand, revised Rule 408(b) does not render statements in mediation inadmissible in proceedings involving third parties, such as criminal proceedings, or even in proceedings between the mediating parties that do not involve the subject matter of the mediation. Nor does it insulate statements in mediation from civil discovery.