Rule 514. Mediator'S Privilege

(a) Definitions. As used in this rule:

(1) A "mediating party" is a person who is participating in mediation as a party or as a party's representative, regardless of whether the subject matter of the mediation 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, regardless of whether the dispute is the subject of litigation.

(3) A "mediator" is a neutral person conducting the mediation proceeding. This rule is subject to any state and federal statutes and regulations of mediations taking place pursuant to such statutory authority.

(b) General rule.

(1) A mediator has a privilege to refuse to testify in any proceeding concerning a mediation or any communication between the mediator and a participant in the mediation that was made during the course of, or that related to the subject matter of, any mediation.

(2) All memoranda and other work product—including files, reports, interviews, case summaries, and notes—prepared by a mediator are confidential and are not subject to disclosure in any judicial or administrative proceeding involving any of the parties to the mediation in which the materials were generated.

(c) Exceptions. The mediator's privilege does not apply:

(1) Mediated agreement. To a communication in an agreement evidenced by a record signed by the parties to the agreement.

(2) Furtherance of crime or fraud. If the mediating party who made the communication sought or obtained the mediator's services to enable or aid anyone to plan, commit or conceal what the mediating party knew or reasonably should have known to be a crime or fraud.

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

(4) Mediator misconduct. To communications sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice by the mediator.

(5) Party or counsel misconduct. To communications sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice by a mediation party, nonparty participant, or a party's representative based on conduct that occurred during a mediation.

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

(7) Manifest injustice. If, after a hearing in camera, a court, administrative agency, or arbitrator finds that the disclosure of a communication is necessary in a particular case to prevent a manifest injustice, and that the need for disclosure outweighs the importance of protecting the general requirement of mediation confidentiality.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 514 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.

Advisory Committee Note (December 2009) The purpose of this new Rule 514 is to provide a privilege for mediators not to be called as witnesses to statements or conduct of parties occurring during the course of mediation. There is no limitation on the subject matter or the circumstances of the mediation, nor is there a particular level of formality prescribed. The proposed rule is based on similar rules in other states and on the Uniform Mediation Act (UMA), which has not been adopted in Maine. This privilege is subject to a number of exceptions. The privilege only applies to mediation proceedings conducted by a neutral mediator. Thus, when a party's lawyer, a guardian ad litem , or other person with a particular point of view to represent attempts to function as "mediator" in settlement or other discussions, the privilege is not applicable. The privilege also does not apply to conferences with "settlement judges" or other judicial officials who may be acting in a meditative capacity because of the importance of transparency of public justice institutions. The provisions of this Rule are explicitly made subject to any state or federal statute or regulations issued pursuant to such statutes governing mediations held pursuant to such statutes. In case of conflict such statutory provisions will govern. Many states have made explicit exemptions to the privilege for information relating to administrative aspects of the mediation. This includes, for example, whether the mediation has occurred or has terminated, whether a settlement was reached, and attendance by the parties. Section 7(b) of the UMA accomplishes this objective. The individual mediator and the mediation profession have an interest in maintaining their neutrality that transcends any particular dispute. Section (b) therefore establishes broad protection for the mediator. The first clause of this section makes the records of the mediator confidential and not subject to disclosure in subsequent proceedings that involve the mediating parties. The second clause gives the mediator a privilege from testifying about the mediation or disclosing any communication made between him or her and any participant in the mediation. The phrase "any communication," includes not only those communications made in private caucus but also those made with others present and all other communications. This privilege belongs to mediators, not mediating parties. This Rule does not empower a party to prevent a mediator from testifying if the mediator chooses to do so. Prevailing ethical precepts generally prevent mediators from disclosing mediation communications unless ordered to do so by a court. See, e.g ., Maine Association of Mediators Code of Conduct, Standard V and Association for Conflict Resolution Code of Ethics, Section 3. These provisions would, in effect, require a mediator to claim the privilege whenever applicable, unless the parties agreed otherwise. Subsection (1) of the exceptions is based on the UMA § 6(a)(1) and permits evidence of a signed agreement to be introduced in subsequent proceedings. This includes agreements to mediate, agreements as to how the mediation will be conducted as well as agreements that memorialize the parties' resolution of the conflict. Consistent with the practice of most states, this exception does not include oral agreements made between the parties. An exception for communications made during a mediation designed to further a crime or fraud, as established by subsection (2), is probably the most common single exception amongst the states that have adopted such privileges. The lawyer-client privilege established by these Rules also contains such an exception (Rule 502(d)(1)). The language of this exception draws on that used in Rule 502 as well as UMA § 6(a)(4), which extends the exemption to cover cases where the mediation is used to conceal an ongoing crime. This exemption does not apply to admissions of past crimes, which remains privileged. Subsection (3) is based on UMA § 6(a)(3) and similar provisions have been adopted in many states. Subsection (4) creates an exemption for cases in which professional misconduct by the mediator is alleged. Such a provision is increasingly common amongst states and is also present in UMA § 6(a)(5). As the UMA commentary notes, such disclosures may be necessary to promote mediator accountability by allowing grievances to be brought, and fairness requires that the mediator be able to defend himself or herself against such a claim. Subsection (5) is adapted from the UMA § 6(a)(6). However, in the UMA, this exception does not apply to the mediator privilege. The UMA justifies retaining the mediator's privilege in such cases to maintain the integrity of the mediation process and impartiality of the mediator, which would be threatened if the mediator was frequently called into misconduct cases to be the tie-breaking witness. The exemption created in this Rule applies due to skepticism about the frequency in which such cases occur and the compelling need for evidence when such cases do arise. Subsection (6) makes an exception to the privilege for information relevant to child and adult abuse and neglect. Such provisions are common in the domestic mediation confidentiality statutes of many states. Thus, a mediator could be required to testify in a criminal proceeding involving child or adult abuse or neglect as well as in a protective proceeding brought under 22 M.R.S., ch. 958A, 22 M.R.S., ch. 1071 or some similar statutory provision. Subsection (7) is designed to allow for other, non-listed exceptions to the privilege on an ad hoc basis to prevent manifest injustice. A number of states, such as Ohio and Wisconsin, have adopted such provisions. UMA § 6(b) establishes an exception in certain cases, such as for the implementation of a mediated agreement, but only after it is determined, after an in camera hearing, that "the evidence is not otherwise available" and the need for the evidence "substantially outweighs" the interest in protecting confidentiality. ARTICLE VI. WITNESSES