(a) Definition. For the purposes of this section, a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation, and who either (1) has four years of professional experience as a mediator, (2) is accountable to a dispute resolution organization which has been in existence for at least three years, or (3) has been appointed to mediate by a judicial or governmental body.
(b) Privilege Applicable to Mediator Work Product. All memoranda and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply.
(c) Privilege Applicable to Parties’ Communications. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator, or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding.
(d) Privilege Applicable in Labor Disputes. Any person acting as a mediator in a labor dispute who receives information as a mediator relating to the labor dispute shall not be required to reveal such information received by him or her in the course of mediation in any administrative, civil, or arbitration proceeding. This provision does not apply to criminal proceedings.
Subsections (a), (b), and (c). These subsections are derived from G. L. c. 233, § 23C. Although there are no express exceptions to the privilege set forth in Subsections (a), (b), and (c), the Supreme Judicial Court has recognized that the mediation privilege is subject to the doctrine of “at issue” waiver. See Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 658 n.11, 790 N.E.2d 653, 658 n.11 (2003), citing Darius v. City of Boston, 433 Mass. 274, 277–278, 741 N.E.2d 52, 54–55 (2001), and cases cited. See also Section 523(b)(2), Waiver of Privilege: Conduct Constituting Waiver.
Subsection (d). This subsection is derived from G. L. c. 150, § 10A.