Rule 503 Mediation Privilege

(a) Definitions. For purposes of this rule:

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015

(1) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.

(2) "Mediator" means a neutral person who conducts a mediation. "Mediator" includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.

(3) "Mediation consultation" means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.

(b) Inapplicability.

(1) Nothing in this rule expands or limits a court's authority to order participation in a dispute resolution proceeding. Nothing in this rule authorizes or affects the enforceability of a contract clause in which parties agree to the use of mediation.

(2) Nothing in this rule makes admissible evidence that is inadmissible under Evidence Rule 402 or 403, or any other rule or statute.

(c) Applicability. This rule applies to a mediation as defined in subdivision (a) of this rule. All references to subdivisions or paragraphs contained within this rule are to subdivisions or paragraphs within this rule only.

(d) Oral Agreement. An oral agreement "in accordance with subdivision (d) means an oral agreement that satisfies all of the following conditions:

(1) The oral agreement is recorded by a reliable means of audio recording.

(2) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited.

(3) The parties to the oral agreement expressly state on the record that the agreement is enforceable or binding, or words to that effect.

(4) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded.

(e) Confidentiality of Mediation Communications. Except as otherwise provided in this rule:

(1) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(2) No document that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015

(3) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

(f) Admissibility of Certain Matters.

(1) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.

(2) This rule does not limit any of the following:

(A) The admissibility of an agreement to mediate a dispute.

(B) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.

(C) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute.

(g) Mediator Reports to Court Generally Prohibited. Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with subdivision (d).

(h) Parties May Agree to Non-Confidentiality of Communication.

(1) A communication or a document, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this rule if either of the following conditions is satisfied:

(A) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with subdivision (d), to disclosure of the communication, document, or writing.

(B) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with subdivision d, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.

(2) For purposes of paragraph (h)(1), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in paragraph (a)(2).

(i) Written Settlement Agreements May be Admissible. A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this rule if the agreement is signed by the settling parties and any of the following conditions are satisfied:

(1) The agreement provides that it is admissible or subject to disclosure, or words to that effect.

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015

(2) The agreement provides that it is enforceable or binding or words to that effect.

(3) All parties to the agreement expressly agree in writing, or orally in accordance with subdivision (d) to its disclosure.

(4) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

(j) Oral Agreements May be Admissible. An oral agreement made in the course of, or pursuant to, a mediation is not made inadmissible, or protected from disclosure, by the provisions of this Rule if any of the following conditions are satisfied:

(1) The agreement is in accordance with subdivision (d).

(2) The agreement is in accordance with paragraphs (d)(1), (d)(2), and (d)(4), and all parties to the agreement expressly agree, in writing or orally in accordance with subdivision (d), to disclosure of the agreement.

(3) The agreement is in accordance with paragraphs (d)(1), (d)(2), and (d)(4), and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

(k) End of Mediation.

(1) For purposes of confidentiality under this rule, a mediation ends when any one of the following conditions is satisfied:

(A) The parties execute a written settlement agreement that fully resolves the dispute.

(B) An oral agreement that fully resolves the dispute is reached in accordance with subdivision (d).

(C) The mediator provides the mediation participants with a writing signed by the mediator that states that the mediation is terminated, or words to that effect, which shall be consistent with subdivision (g).

(D) A party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect, which shall be consistent with subdivision (g). In a mediation involving more than two parties, the mediation may continue as to the remaining parties or be terminated in accordance with this subdivision.

(E) For 10 calendar days, there is no communication between the mediator and any of the parties to the mediation relating to the dispute. The mediator and the parties may shorten or extend this time by agreement.

(2) For purposes of confidentiality under this rule, if a mediation partially resolves a dispute, mediation ends when either of the following conditions is satisfied:

(A) The parties execute a written settlement agreement that partially resolves the dispute.

(B) An oral agreement that partially resolves the dispute is reached in accordance with subdivision (d).

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015

(3) This subdivision does not preclude a party from ending a mediation without reaching an agreement. This subdivision does not otherwise affect the extent to which a party may terminate a mediation.

(l) Continuing Confidentiality. Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this rule before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.

(m) Attorney’s Fees Awarded if Mediator Subpoenaed in Some Circumstances. If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a document, and the court or other adjudicative body determines that the testimony or writing is inadmissible under this rule, or protected from disclosure under this rule, the court or adjudicative body making the determination shall award reasonable attorney's fees and costs to the mediator against the person seeking the testimony or writing.

(n) Subsequent Reference to Mediation Generally Prohibited. Any reference to a mediation during any other subsequent trial or noncriminal proceeding is a potential grounds for vacating or modifying the decision in that trial or proceeding, in whole or in part, and granting a new or further trial or hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.

* Revision Committee Note: This rule is modeled on California’s mediation privilege as set forth California Evidence Code Sections 1115 through 1128 . The Committee based this rule on the California rule as it is expected that the Commonwealth Supreme Court will soon adopt a mandatory alternative dispute resolution process that will be based upon California’s model.