Section 44-7B-5 - Exceptions; admissibility; discovery. - New Mexico Statutes

44-7B-5. Exceptions; admissibility; discovery.

A.      Mediation communications are not confidential pursuant to the Mediation Procedures Act [44-7B-1 NMSA 1978] if they: 

(1)     are contained in an agreement reached by the mediation parties during a mediation, including an agreement to mediate, and the agreement is evidenced by a record signed by the mediation parties, except when parts of the agreement are designated by the mediation parties to be confidential or are confidential as otherwise provided by law; 

(2)     are communications that all mediation parties agree may be disclosed, as evidenced by a record signed by all mediation parties prior to or at the mediation; 

(3)     threaten or lead to actual violence in the mediation;  

(4)     reveal the intent of a mediation party to commit a felony or inflict bodily harm to the mediation party's self or another person; 

(5)     disprove a felony charge; 

(6)     are required by law to be made public or otherwise disclosed; 

(7)     relate to abuse, neglect or criminal activity that is not the subject of the mediation; 

(8)     are sought or offered to disprove a claim or complaint of professional misconduct or malpractice based on conduct during a mediation and filed against a mediation party or nonparty participant;   

(9)     relate to the administrative facts of the mediation, including: 

(a)     whether the mediation parties were referred to mediation;  

(b)     whether a mediation occurred or has terminated; 

(c)     the date, time and place of a mediation; 

(d)     the persons in attendance at a mediation; and 

(e)     whether a mediator received payment for the mediation; or 

(10)     relate to whether the parties reached a binding and enforceable settlement in the mediation. 

B.     Mediation communications may be disclosed if a court, after hearing in camera and for good cause shown, orders disclosure of evidence that is sought to be offered and is not otherwise available in an action on an agreement arising out of a mediation evidenced by a record.  Nothing in this subsection shall require disclosure by a mediator of any matter related to mediation communications.  

C.     Mediators shall not be required to make disclosure, either through discovery or testimony at trial or otherwise, of any matter related to mediation communications, except: 

(1)     pursuant to Paragraphs (3) through (10) of Subsection A and Paragraph (3) of Subsection D of this section; and 

(2)     to prove or disprove a claim of mediator misconduct or malpractice filed against a mediator.  

D.     Nothing in the Mediation Procedures Act shall prevent: 

(1)     the discovery or admissibility of any evidence that is otherwise discoverable or admissible, merely because the evidence was presented during a mediation; 

(2)     the gathering of information for research or educational purposes or for the purpose of evaluating or monitoring the performance of a mediator; provided that the mediation parties or the specific circumstances of the dispute of the mediation parties are not identified or identifiable; 

(3)     a court or court agency, a government or governmental subdivision, agency or instrumentality of this state or a tribal court, government or agency, when conducting a mediation program under its auspices, from ordering prior to the mediation that different or additional rules of confidentiality shall apply to the mediation; or 

(4)     mediation parties from agreeing in writing to additional or different confidentiality protections prior to the mediation, subject to Paragraphs (3) through (10) of Subsection A and Subsection C of this section.