SECTION 60.409. Confidentiality

(a) Except as provided in subsections (c) and (d), a communication relating to the subject matter made by a participant in mediation, whether before or after the institution of formal mediation proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any separate legal proceeding.

(b) Any notes or records made regarding a mediation are confidential, and participants, including the mediator, may not be required to testify in any separate legal proceeding relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.

(c) An oral communication or written material used in or made a part of a mediation process is admissible or discoverable only if it is admissible or discoverable independent of the mediation.

(d) If this section conflicts with other legal requirements for disclosure of communications or materials in a separate legal proceeding, the issue of confidentiality may be presented to the judge in that proceeding to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure.

(e) All communications in the mediation between parties and between each party and the mediator are confidential. No shared information will be given to the other party unless the party sharing the information explicitly gives the mediator permission to do so. Material provided to the mediator will not be provided to other parties and will not be filed or become part of the contested case record. All notes taken during the mediation conference will be destroyed at the end of the process.

Source Note: The provisions of this §60.409 adopted to be effective July 1, 2009, 34 TexReg 4326; amended to be effective June 1, 2023, 48 TexReg 2694