Me. R. Evid. 408

As amended through February 27, 2023

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.

Me. R. Evid. 408

Adopted effective 1/1/2015.

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.

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