Confidentiality

 

Circuit Rule 33-1

(a)     Purpose.  The function of the Circuit Mediation Office is to facilitate the voluntary resolution of cases.

(b)     Attendance at Mediation Conferences.  A judge or circuit mediator may require the attendance of parties and counsel at a conference or conferences to explore settlement-related issues.
                                        
(c)    Confidentiality.  To encourage efficient and frank settlement discussions, the Court establishes the following rules to achieve strict confidentiality of the mediation process.

    (1)    The Circuit Mediators will not disclose mediation related communications to the judges or court staff outside the mediation unit.

    (2)    Documents, e-mail and other correspondence sent only to the Circuit Mediators or to the mediation unit are maintained separately from the court's electronic filing and case management system and are not made part of the public docket.

    (3)    Should a Circuit Mediator confer separately with any participant in a mediation, those discussions will be maintained in confidence from the other participants in the settlement discussions to the extent that that participant so requests.

    (4)    Any person, including a Circuit Mediator, who participates in the Circuit Mediation Program must maintain the confidentiality of the settlement process.  The confidentiality provisions that follow apply to any communication made at any time in the Ninth Circuit mediation process, including all telephone conferences. Any written or oral communication made by a Circuit Mediator, any party, attorney, or other participant in the settlement discussions:

        (A)    except as provided in (B), may not be used for any purpose except with the agreement of all parties and the Circuit Mediator; and

        (B)    may not be disclosed to anyone who is not a participant in the mediation except

            (i)    disclosure may be made to a client or client representative, an attorney or co-counsel, an insurance representative, or an accountant or other agent of a participant on a need-to-know basis, but only upon receiving assurance from the recipient that the information will be kept confidential;

            (ii)    disclosure may be made in the context of a subsequent confidential mediation or settlement conference with the agreement of all parties.  Consent of the Circuit Mediator is not required.

    (5)    Written settlement agreements are not confidential except as agreed by the parties.

    (6)    This rule does not prohibit disclosures that are otherwise required by law.

(d)    Binding Determinations by Appellate Commissioner.  In the context of a settlement or mediation in a civil appeal, the parties who have otherwise settled the case may stipulate to have one or more issues in the appeal submitted to an appellate commissioner for a binding determination.