Alfieri v. Solomon

Under ORS 36.110(7)(a), whether a communication is a confidential “mediation communication” under ORS 36.220 turns on three factors: (1) whether it is a “communication,” (2) its connection to a “mediation,” and (3) the identity of the recipient. Private discussions between a mediating party and his attorney that occur outside mediation proceedings, before or after a settlement agreement has been signed, are not “mediation communications,” even if they do relate to what transpires in the mediation.

Alfieri petitioned the Supreme Court to review a Court of Appeals decision with a question of first impression: to what extent, and to which parties, do the confidentiality provisions of Oregon’s mediation statutes, ORS 36.100 to 36.238, prohibit a client from offering as evidence communications made by his attorney in a malpractice action against that attorney? The trial court granted Solomon’s ORCP 21 E motion to strike certain allegations made by Alfieri that related to statements made by Solomon regarding the mediation process. The trial court dismissed the case with prejudice under ORCP 21 A(8) for failure to state a claim before Alfieri filed a responsive pleading. The Court turned to the mediation statutes to determine which “mediation communications” in the “mediation process” are protected by the confidentiality provisions. The Court determined that “mediation” includes only the part of the process in which a mediator participates; interactions between the parties to the mediation and their counsel that occur without the mediator’s involvement are not part of the mediation, even when those interactions are related to the mediation. The Court laid out three factors to determine whether a communication is a “mediation communication” protected by ORS 36.220: “(1) whether it is a “communication,” (2) its connection to a “mediation,” and (3) the identity of the recipient.” The Court concluded that a “mediation communication” occurs during the course of a mediation and is “in connection with” a mediation if the communication is made outside of the mediation proceedings but relates to the substance of the dispute being mediated before a settlement agreement is signed. Communications that occur after a settlement agreement is signed–even if they relate in substance to the dispute or its settlement–are not “mediation communications” within the meaning of ORS 36.110(7)(a) and are neither prohibited from disclosure under ORS 36.220 nor inadmissible under 36.222. The term “mediation communications,” however, covers only communications exchanged between “parties, mediators, representatives of a mediation program, and other persons while present at mediation proceedings,” during the course of the mediation. Communications between a mediating party and his attorney outside of mediation proceedings are not “mediation communications” as defined in the statute. Affirmed in part and reversed in part, remanded to the circuit court for further proceedings.