Section 80. Confidentiality

A. The provisions of § 8.01-576.10 of the Code of Virginia concerning the confidentiality of dispute resolution shall govern all dispute resolution proceedings held pursuant to this chapter except when the board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation. The board shall inform the parties in the order of referral issued under 9VAC5-210-150 what this information is expected to be. If the board later decides that it will need additional information before it can issue the permit or promulgate the regulation, it shall so notify the parties as expeditiously as possible. If any of the information requested by the board would normally be protected by the confidentiality provisions of this section, the parties shall waive that protection when delivering the requested information to the board. Notwithstanding the above, any information qualifying as confidential under the Air Pollution Control Law shall remain confidential.

B. With the exception noted in subsection A of this section, all memoranda, work products, and other materials contained in the case files of a neutral or dispute resolution program are confidential. Any communication made during dispute resolution that relates to the controversy, including screening, intake, and scheduling a dispute resolution proceeding, whether made to the neutral or dispute resolution program staff, to a party, or to any other person, is confidential. Any party's lack of consent to participate in the dispute resolution process, at any point in the process, is confidential.

C. A written settlement agreement shall not be confidential, unless the parties otherwise agree in writing.

D. Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except:

1. When all parties to the dispute resolution process agree, in writing, to waive the confidentiality;

2. To the extent necessary, in a subsequent action between the neutral or dispute resolution program and a party to the dispute resolution proceeding for damages arising out of the dispute resolution process;

3. Statements, memoranda, materials, and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in the dispute resolution procedure;

4. Where a threat to inflict bodily injury is made;

5. Where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime;

6. Where an ethics complaint is made against the neutral by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral to defend against such complaint;

7. Where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party's legal representative based on conduct occurring during a mediation;

8. Where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-576.12 of the Code of Virginia in a proceeding to vacate a mediated agreement; or

9. As provided by law or rule other than the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

E. The use of attorney work product in dispute resolution shall not result in a waiver of the attorney work product privilege.

F. Unless otherwise specified by the parties, no dispute resolution procedure shall be electronically or stenographically recorded.

Historical Notes

Derived from Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Statutory Authority

§ 10.1-1186.3 of the Code of Virginia.