Oregon Mediation Confidentiality: ORS 36.220 Explained

Mediation only works when the people at the table believe that what they say inside the room will stay inside the room. If a party thinks a rough admission or a candid apology can be pulled into a later courtroom, that party will speak carefully, offer nothing, and go home. ORS 36.220 through ORS 36.238 recognize that reality and create a broad shield around what happens in mediation — stronger than the settlement-negotiation protection most litigators know from OEC 408.

This guide covers what the statute protects, who is bound, the narrow list of exceptions, how a mediated settlement is enforced without breaking the shield, how the Uniform Mediation Act pieces (ORS 36.234 to 36.238) interact with ORS 36.220, and the traps that trip up parties and counsel.

This article is general information about Oregon mediation confidentiality and is not legal advice for any specific matter. Confidentiality analysis depends on the statute or rule governing your mediation, the terms of your mediation agreement, and the facts. Talk with an Oregon lawyer before acting on any question about disclosure or admissibility.

BFQ Law's Oregon practice serves Portland-area clients across Multnomah County and the surrounding metro. To speak with a lawyer about a mediation, a mediated settlement, or a confidentiality dispute, reach us through our contact page or by email at Secretary.OR@bfqlaw.com to schedule a confidential consultation.

Table of Contents

• ➤ Why Mediation Confidentiality Matters
• ➤ What ORS 36.220 Protects
• ➤ Who Is Bound by Confidentiality
• ➤ The Narrow Exceptions Under ORS 36.224
• ➤ Waiver and How It Is Done
• ➤ Enforcing a Mediated Agreement: The Paradox
• ➤ The Uniform Mediation Act in Oregon
• ➤ Court-Connected Mediation and UTCR 8
• ➤ Workplace Mediation Under ORS 36.232
• ➤ What Is Not Protected
• ➤ Common Confidentiality Traps
• ➤ Mediation Privilege vs. OEC 408 and FRE 408
• ➤ Frequently Asked Questions
• ➤ Talk to a BFQ Law Oregon Attorney

Why Mediation Confidentiality Matters

Mediation is a settlement conversation, not a hearing. Progress depends on parties willing to move off opening positions and put real numbers on the table — which does not happen if a party believes an admission today becomes an exhibit tomorrow.

Oregon's core protection lives in ORS 36.220 (see the official ORS Chapter 36 text at oregonlegislature.gov). The statute treats mediation communications and agreements as confidential and inadmissible in a later adjudicatory proceeding unless an enumerated exception in ORS 36.224 applies. That shield is what lets a party sit across from an insurer, ex-spouse, former business partner, or departing employee and have a real conversation about resolution without handing over a discovery file.

What ORS 36.220 Protects

ORS 36.220 (see the public mirror at oregon.public.law) declares that, subject to defined exceptions, mediation communications are confidential and not to be disclosed, and that mediation communications and agreements are not admissible in any subsequent adjudicatory proceeding. The bar is on both disclosure and admissibility — two different problems that many litigators lump together.

Defining a Mediation Communication

ORS 36.222 sets the outer boundary by defining a "mediation communication" broadly to sweep in statements — oral, written, or nonverbal — made during a mediation or for the purpose of considering, initiating, continuing, reconvening, or evaluating one. That "for the purpose of" language does a lot of work: pre-mediation intake calls, scheduling emails, position statements exchanged with the mediator, and post-mediation follow-ups about the same negotiation can all fall inside the shield. The statute also protects "mediation agreements" — both the written agreement to mediate and any written agreement reached in the mediation itself — a distinction that matters when a settlement partly collapses.

Two Different Bars: Disclosure and Admissibility

The disclosure bar is a substantive confidentiality rule: participants may not disclose mediation communications outside the mediation. The admissibility bar is an evidentiary rule that keeps mediation communications out of court trials, arbitration hearings, and most administrative hearings. A statement can violate the disclosure bar (a party posting online) without ever being offered in evidence, and can be inadmissible even after participants have talked about it.

Who Is Bound by Confidentiality

Under ORS 36.220 and the definitions in ORS 36.222, the shield binds a wide circle: the mediator, the parties, their attorneys and agents, and non-party participants such as translators, accountants brought in to explain a valuation, support persons, and factual witnesses. The statute is not just a mediator confidentiality rule; it covers everyone in the room and the process around it.

The Mediator's Added Protection

ORS 36.226 gives the mediator specific privilege and testimonial immunity. The mediator is generally not compelled to testify about what happened in the mediation and is protected from civil liability for good-faith conduct. That immunity keeps neutrals doing their job without fear a losing party will drag them onto a witness stand.

Agreements in Writing and State Agencies

ORS 36.228 addresses how confidentiality operates when a state agency is involved and requires certain mediations to be captured in a written agreement to mediate. When the parties include a public body, the interaction of the mediation shield with Oregon public-records obligations has to be handled up front — the written agreement fixes the scope of confidentiality for the specific dispute.

The Narrow Exceptions Under ORS 36.224

ORS 36.224 lists the exceptions to mediation confidentiality. The list is deliberately narrow, and Oregon courts read it that way. The categories generally include:

• Written waiver by the parties — the parties may agree in writing to waive confidentiality, subject to the constraints described in the waiver section below.
• Mandatory child abuse reporting — a mediator or other mandatory reporter who learns of suspected child abuse is not excused by the confidentiality shield.
• Mandatory elder abuse reporting — the same principle applies to statutory elder-abuse reporting duties.
• Threats of bodily harm — statements reflecting a threat to inflict bodily harm on another person are not shielded.
• Communications used to plan or commit a crime — mediation is not a safe space for planning criminal activity.
• Claims of professional misconduct against the mediator — a person bringing a complaint may reveal the communications necessary to prosecute it.
• Proof of malpractice — a client suing a lawyer or other professional over conduct in the mediation may use the communications necessary to prove the claim.
• Enforcement or modification of a mediated agreement — a party seeking to enforce, rescind, or modify a written mediated agreement may present that written agreement in court.

The exceptions are narrow. Oregon has not adopted a broad "interest of justice" carve-out that would let a court override the shield when a party is unhappy with the outcome; if a category is not listed, the default holds. Read the current version of ORS 36.224 on the Oregon Legislative Assembly's official site before relying on any specific exception.

Waiver and How It Is Done

The written-waiver exception in ORS 36.224 is the one people most often misunderstand. Two features drive the rule.

First, the waiver has to be in writing. A verbal agreement to discuss what happened in mediation does not lift the shield. If opposing counsel calls to say "we can both admit what your client said about the accident, right?" the answer is no — not until there is a signed writing that covers the specific communication and use.

Second, waiver is generally an all-parties event. One party cannot unilaterally waive confidentiality over another party's statements, and the mediator has an independent interest under ORS 36.226 that typically requires the mediator's consent. A properly drafted mediation agreement contains a waiver section, and any later waiver should be documented in a stand-alone writing signed by all affected participants.

Enforcing a Mediated Agreement: The Paradox

Every Oregon mediation lawyer eventually confronts the paradox at the heart of ORS 36.220: the mediation is confidential, yet a party who wants to enforce the settlement has to prove something to a judge. Oregon's answer — recognized expressly in ORS 36.224 — is that the shield protects the negotiation process, but a written mediated agreement the parties actually signed can be presented to a court to be enforced, rescinded, or modified.

The written settlement therefore matters more than the discussion that produced it. If the parties reach an accord but never sign it, proving its content is materially harder — the negotiations remain confidential and inadmissible. A stipulation, term sheet, or full settlement agreement signed before leaving becomes the vehicle for enforcement, and in family cases it is often turned into a stipulated judgment. Parties should not leave on a handshake if they want the deal locked in; a one-page signed memorandum of understanding is the shield's answer to the paradox.

The Uniform Mediation Act in Oregon

The Uniform Mediation Act (UMA), drafted by the Uniform Law Commission to standardize mediation privilege across states, was partially adopted by Oregon at ORS 36.234 through ORS 36.238. Rather than replace ORS 36.220, Oregon layered the UMA on top of the existing architecture — giving the state both a longstanding confidentiality regime and a UMA-flavored privilege framework that supplements it.

Because both bodies of law can apply, an Oregon mediation agreement commonly identifies which framework governs. In most private commercial and family mediations, ORS 36.220 through 36.232 remain the primary source of confidentiality protection, and ORS 36.234 through 36.238 fill in privilege mechanics — who holds it, how it is asserted or waived, and how it operates when a subpoena arrives. Confirm the confidentiality clause aligns with the statute the parties intend to invoke; a mismatch is a common source of later disputes.

Court-Connected Mediation and UTCR 8

ORS 36.185 through 36.210 authorize Oregon's court-connected mediation programs, and the Uniform Trial Court Rules put procedural muscle on the bones. UTCR Chapter 8 — in particular UTCR 8.010 through 8.070 — governs mandatory mediation of contested family law issues in most Oregon counties (see the official UTCR chapter 8 text on courts.oregon.gov).

Multnomah County Family Mediation

In Multnomah County, contested custody and parenting-time issues generally must go to mediation before a judge will hear them. The county's family court services program (see the Multnomah Circuit Court family court services page) coordinates the mediation under both the ORS 36.220 framework and UTCR 8. Portland-area parents are often surprised that the confidentiality is real: what the parents say to the mediator does not go back to the judge as a custody recommendation and does not appear in a parenting-time evaluation unless a separately ordered evaluator is involved. Some programs layer additional obligations by local rule, so ask for and read the program's policy.

Workplace Mediation Under ORS 36.232

ORS 36.232 addresses mediation of workplace disputes, including disputes involving public-body employers. Employment mediations frequently involve information that would otherwise be subject to grievance procedures, collective bargaining, or public-records requests, and the statute structures confidentiality so the mediation shield does not undermine those frameworks.

For an Oregon employer or employee entering a workplace mediation, the practical points follow the statute: put confidentiality expectations in a signed written mediation agreement; identify any public-records obligations that constrain the regime; and be careful about who is a "party" versus a "non-party participant," because that categorization affects who can hold or waive the privilege later.

What Is Not Protected

The shield is broad but not unlimited. A working list of what mediation confidentiality does not reach in Oregon:

• Statements made outside the mediation — a pre-existing text message is not shielded because the same subject came up in mediation later.
• Pre-existing evidence — a document that would otherwise be discoverable does not become privileged because it was handed across the mediation table.
• Facts a witness knows independently — a percipient witness does not lose the ability to testify to facts they knew from outside the mediation.
• Criminal acts committed in the mediation — a physical assault or a threat meeting the harm exception is not shielded.
• The bare fact that mediation occurred and who attended — confidentiality protects content, not attendance, though a well-drafted mediation agreement can extend contractual protection further.

A lawyer preparing for trial after a failed mediation should map every exhibit to a source that exists independently of the mediation — depositions, business records, contemporaneous communications between the parties — rather than smuggle mediation content in through a side door.

Common Confidentiality Traps

A handful of confidentiality mistakes appear over and over in Oregon practice. Each has a straightforward fix.

Quoting Mediation Content in Motions

The most common trap is an attorney quoting or summarizing something the opposing party said in mediation to support a motion or sanctions request. Even paraphrased, that use runs into the admissibility bar of ORS 36.220 and can produce a motion to strike, a protective order, or — in an aggravated case — a bar complaint. Do not rely on mediation communications in a motion, and instruct staff and co-counsel to do the same.

Posting on Social Media

Parties often want to vent about a difficult session online. A post describing what the other side said, admitted, or refused breaches the disclosure bar; even a general post identifying the mediator and the tone of the negotiation can trigger claims. Counsel should give a clear pre-mediation instruction: no posts, no texts to friends about content, no group-chat updates.

Disclosing to Family and Third Parties

Parties often want to debrief with a spouse, parent, or business partner after mediation. Some of that is inevitable, but the shield is not lifted because the third party is close to the client, and repeated disclosures create both legal and practical risk. Keep debriefs at a general level ("we made progress on money, not on parenting time") rather than sharing specific statements or offers.

Taking Notes That Live Outside the File

Notes taken during mediation are themselves mediation communications when they reflect what was said. If they migrate into discovery responses, internal memos, or later briefs, the regime is undermined. Treat mediation notes with the same care as attorney work product.

Mediation Privilege vs. OEC 408 and FRE 408

Most litigators know the settlement-negotiation rule from evidence class. In federal court it lives at Federal Rule of Evidence 408 (see the Cornell LII mirror of FRE 408); in Oregon state court it lives at OEC 408, codified at ORS 40.190. Both rules bar the use of settlement offers and related conduct to prove liability or damages, but Oregon's mediation shield is stronger. The main differences:

• Scope. OEC 408 and FRE 408 bar admissibility of settlement offers and statements made in compromise negotiations. ORS 36.220 covers a broader class of mediation communications — everything said or done in or for the mediation — regardless of whether it looks like a classic settlement offer.
• Disclosure vs. admissibility. OEC 408 and FRE 408 are evidentiary rules only; they do not prevent disclosure outside court. ORS 36.220 imposes a duty of non-disclosure in addition to inadmissibility.
• Permitted uses. FRE 408 and OEC 408 identify permitted uses such as showing bias or obstruction. ORS 36.220's exceptions are narrower and different in character.
• Layering. Where both rules apply, ORS 36.220 supplies the primary shield and OEC 408 supplies a backstop. Cite both in a motion to exclude, but the mediation statute usually does the heavier lifting.

If your matter is in federal court in Oregon but involves an Oregon mediation, expect a mixed analysis: federal courts sitting in diversity generally apply state privilege law under Federal Rule of Evidence 501, which pulls ORS 36.220 into the federal proceeding for a state-law claim. Counsel should analyze the choice-of-law question before deciding what to file.

Frequently Asked Questions

FAQ 1: Can what I say in mediation be used against me later in court?

Generally, no. Under ORS 36.220, mediation communications are not admissible as evidence in a subsequent adjudicatory proceeding and are not to be disclosed. The narrow exceptions in ORS 36.224 — threats of bodily harm, planning a crime, mandatory abuse reporting, enforcement of the written mediated agreement — do not include a general fairness carve-out. If the other side tries to introduce a mediation statement, object under ORS 36.220 and, as a backstop, OEC 408.

FAQ 2: Can the mediator be subpoenaed to testify?

A subpoena can be served, but ORS 36.226 gives the mediator privilege and testimonial immunity in most circumstances. The mediator generally is not compelled to testify about mediation communications and is protected from civil liability for good-faith conduct. If you receive one as a mediator, consult counsel before responding — the usual answer is a motion to quash based on the statutory privilege.

FAQ 3: What if the mediation settlement falls apart — can we enforce the partial agreement?

If the parties signed a written memorandum, term sheet, or settlement agreement during the mediation, that writing can be presented to a court for enforcement under the exception in ORS 36.224. If they only reached a verbal understanding, enforcement becomes harder — the negotiations remain confidential, and proving the terms requires evidence that does not rely on mediation communications. That is why experienced counsel push for a short signed writing before anyone leaves.

FAQ 4: Are pre-mediation phone calls with the mediator confidential?

Often, yes. ORS 36.222 defines a "mediation communication" to include statements made for the purpose of considering, initiating, continuing, or reconvening a mediation, and intake calls with a prospective mediator commonly fall inside that definition. Even so, treat sensitive early-stage discussions with the same care as in-session communications.

FAQ 5: What if I tell the mediator about ongoing child abuse?

Mandatory child abuse reporting is a specific exception to mediation confidentiality under ORS 36.224. A mediator who is a mandatory reporter under Oregon law will make the report, and the mediation shield does not block it. The same principle applies to statutory elder-abuse reporting.

FAQ 6: Can I record my mediation session?

Only with informed consent of the other participants and typically only if the mediation agreement expressly allows it. Oregon's wiretapping laws (ORS 165.540 and related provisions) impose their own consent requirements, and most mediators prohibit recording as a matter of policy. Even where permitted, the recording is itself a mediation communication subject to ORS 36.220.

FAQ 7: Does mediation confidentiality apply to arbitration?

Arbitration is a different process governed by different rules — primarily ORS Chapter 36's arbitration sections and, for interstate cases, the Federal Arbitration Act. ORS 36.220 protects the mediation phase; if a case moves from mediation into arbitration, mediation communications remain shielded from the arbitrator to the same extent they would be from a court. Arbitration has its own confidentiality rules — usually supplied by the arbitration clause or provider — separate from the mediation statute.

FAQ 8: What if I want to waive confidentiality to prove the other side made a false statement?

Frustration with an opposing party's conduct is not, by itself, an exception to ORS 36.220. Waiver requires a written agreement of the parties under ORS 36.224, and the other side is unlikely to sign one that lets you attack them. If the alleged false statement led to a written settlement, you may be able to litigate rescission or reformation under the enforcement carve-out — but the underlying mediation communications may still be inadmissible. Think this through with counsel before acting.

Talk to a BFQ Law Oregon Attorney

Mediation confidentiality is not a background rule that takes care of itself. It shapes what you say, what you write down, and how you preserve or lose leverage if the mediation does not resolve everything. Getting it right requires attention before, during, and after the session.

BFQ Law's Portland office advises Oregon clients on mediation strategy, drafts and reviews mediation agreements, negotiates settlements at the table, and litigates enforcement and confidentiality disputes when necessary. If you are preparing for a mediation, evaluating a settlement produced in one, or facing a claim that mediation communications are being misused, reach us through our contact page or email Secretary.OR@bfqlaw.com to schedule a confidential consultation.