On October 22, 2008, the Maine Supreme Judicial Court issued order 2009 Me. Rules 1, which amends the Maine Rules of Evidence by adopting a new Rule 514 that addresses privileged communications during mediations. The rule is modeled on, although different from, the Uniform Mediation Act, which has not been adopted in Maine. The new rule will be effective as of January 1, 2009.
Under the new rule, certain types of communications between parties and mediators will be deemed privileged. The rule provides:
A mediating party has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made between the mediating party or a representative of the mediating party and a mediator.
Me. R. Ev. 514(b). A “confidential communication” is defined to mean “a statement, whether oral or written, between a mediating party or representative of a mediating party and a mediator made outside the presence of others during the course of mediation proceedings and that is not intended to be disclosed to third persons.” Me. R. Ev. 514(a)(4). Thus, it does not include communications between a party and the mediator made in the presence of the opposing party or other third-parties.
In that respect, the new Rule 514 differs from the Uniform Mediation Act, which defines essentially all communications made during a mediation as privileged. The advisory committee notes explain that the rule “is meant to bring those communications made in private or ‘caucus’ sessions with the mediator under the coverage of the party’s privilege but to keep communications made with all parties present outside of it.” Me. R. Ev. 514 adv. comm. notes (2008). The advisory committee rejected the broader coverage for all communications during a mediation contained in the uniform act “as artificial and inconsistent with the fundamental concept of a truly confidential communication between a single interest and a trusted confidant as is protected in the other privileges incorporated in the Rules of Evidence.” Id.
The new Rule 514 defines a broader privilege for mediators, as opposed to the parties involved in the mediations. Under the rule:
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 disclose in any subsequent judicial or administrative proceeding 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.
Me. R. Ev. 514(d). In other words, a mediator will be protected from being compelled to disclose basically any documents prepared by the mediator, or any communications involving the mediator, even if those communications do not fall within the definition of “confidential communications.” The broader scope of the mediator’s privilege was intentional, and was based on the advisory committee’s conclusion that the “individual mediator and the mediation profession have an interest in maintaining their neutrality that transcends any particular dispute.” Me. R. Ev. 514 adv. comm. notes (2008). “The mediator’s privilege includes not only those communications made in private caucus but also those made with others present and all other communications.” Id.
There are a number of exceptions to the rule. For instance, the rule does not encompass information about “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,” because that type of information does not qualify as a “confidential communication” at all. Me. R. Ev. 514 adv. comm. notes (2008). The rule lists several other specific instances where the privilege will not apply, including: for evidence in the form of a written agreement related to the mediation itself; if the statements were made in furtherance of a crime or fraud or to inflict harm; in disputes about alleged mediator, party or counsel misconduct; for communications impacting the welfare of a child; or where disclosure is necessary to avoid manifest injustice.
As the advisory committee notes also explain, the rule is only intended to apply to situations where the mediator is truly a neutral mediator, and does not apply to any communications made during judicial settlement conferences.
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 mediative capacity because of the importance of transparency of public justice institutions.
Me. R. Ev. 514 adv. comm. notes (2008).
Although the rule does not specifically address waiver, the advisory committee notes make clear that under existing Rule 510, the protections of Rule 514 can be waived in the same manner as other privileges.
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