Ky. Sup. Ct. Order 2022-08 Rule 99.11

New Rule 99.11 shall read:

1. Unless agreed by the parties and the mediator, mediation conferences

shall be closed to all persons other than the parties and their legal

representatives.

2. No part of mediation may be recorded without express agreement of the

parties, counsel and the mediator.

3. Mediation shall be regarded as settlement negotiations for purposes of

KRE 408.

4. For purposes of this rule, all mediation communications, including

documents, communicated during the mediation process are both

privileged and confidential. For this purpose, the mediation process

includes any communications with the mediator in advance of, during

and after the mediation conference. They are not subject to disclosure

through discovery or any other process and are not admissible into

evidence in any judicial or administrative proceeding. However, evidence

that is otherwise admissible or discoverable shall not be rendered

inadmissible or non-discoverable as a result of its disclosure or use

during the mediation.

5. A mediator shall not disclose, directly or indirectly, to any non-

participant any information communicated to the mediator by a

participant within the mediation process.

6. It is the responsibility of each party and/or counsel to explicitly advise

the mediator precisely what information communicated to the mediator

is communicated in confidence so that it will not be divulged to other

mediation participants.

7. A mediator shall not disclose, directly or indirectly, to any participant in

the mediation any information communicated to the mediator in

confidence unless the mediator is given permission by the

communicating participant to do so. A mediator may encourage a

participant to permit disclosure, but absent such permission, the

mediator shall not disclose.

8. Unless otherwise allowed under CR 99 or CR 100, a mediator shall not

disclose to, nor discuss with, court officials or staff any information

communicated to the mediator by any participant within the mediation

process, including correspondence or communications regarding

scheduling or attendance, nor may the mediator comment about the

mediation negotiations in any respect.

9. Mediators shall not be subject to process requiring the disclosure of any

matter discussed during the mediation, but rather, such matters shall

be considered confidential and privileged in nature except on order of

the court for good cause shown. This privilege and immunity reside in

the mediator and may not be waived by the parties.

10. Nothing in this rule prohibits a mediator from reporting abuse according

to KRS 209.030, KRS 620.030, or other applicable law.

11. Any executed settlement document shall not be deemed privileged and

confidential as provided in this rule unless the parties explicitly

stipulate that the terms of settlement are to remain confidential. In any

event, however, should the settlement agreement be required as proof in

a proceeding to enforce the terms of settlement, such settlement

agreement shall no longer have the privilege of confidentiality and may

be introduced into evidence.

12. Notwithstanding any other provision of this CR 99.11, a mediator will

not be bound by the confidentiality requirements of mediation to the

extent allowed by a court in considering a claim against the mediator.

CR 100 Code of Conduct for Mediators