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.Adopted effective 1/1/2015.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.
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