2.2-4119 - Confidentiality between parties; exemption to Freedom of Information Act.
§ 2.2-4119. Confidentiality between parties; exemption to Freedom ofInformation Act.
A. Except for the materials described in subsection B, all dispute resolutionproceedings conducted pursuant to this chapter are subject to the VirginiaFreedom of Information Act (§ 2.2-3700 et seq.).
B. All memoranda, work products, or other materials contained in the casefile of a mediator are confidential and all materials in the case file of amediation program pertaining to a specific mediation are confidential. Anycommunication made in or in connection with a mediation that relates to thedispute, including communications to schedule a mediation, whether made to amediator, a mediation program, a party or any other person is confidential. Awritten settlement agreement is not confidential unless the parties agree inwriting. Confidential materials and communications are not subject todisclosure or discovery in any judicial or administrative proceeding except(i) when all parties to the mediation agree, in writing, to waive theconfidentiality; (ii) to the extent necessary in a subsequent action betweenthe mediator and a party for damages arising out of the mediation; (iii)statements, memoranda, materials and other tangible evidence, otherwisesubject to discovery, which were not prepared specifically for use in andactually used in the mediation; (iv) where communications are sought oroffered to prove or disprove a claim or complaint of professional misconductor malpractice filed against the mediator; (v) where a threat to inflictbodily injury is made; (vi) where communications are intentionally used toplan, attempt to commit or commit a crime or conceal an ongoing crime; (vii)where communications are sought or offered to prove or disprove a claim orcomplaint of misconduct or malpractice filed against a party, nonparty,participant or representative of a party based on conduct occurring during amediation; (viii) where communications are sought or offered to prove ordisprove any of the reasons listed in § 8.01-576.12 that would enable a courtto vacate a mediated agreement; or (ix) as provided by law or rule other thanthe Virginia Freedom of Information Act (§ 2.2-3700 et seq.). The use ofattorney work product in a mediation shall not result in a waiver of theattorney work product privilege. Unless otherwise specified by the parties,no mediation proceeding shall be electronically or stenographically recorded.
(2002, c. 633.)