§ 25-2932.Scope.

Not every conversation aimed at resolving a dispute counts as “mediation” for privilege purposes, so section 25-2932 draws the line. The act applies when the parties are required to mediate by statute, court rule, or agency rule, or are referred to mediation by a court, agency, or arbitrator; when the parties and the mediator agree in a record that shows they expect the mediation communications to be privileged; or when the mediator or mediation provider holds itself out as offering mediation services.

Four categories fall outside the act entirely. Mediation over establishing, negotiating, administering, or ending a collective-bargaining relationship is excluded, as is mediation of a dispute pending under a collective-bargaining agreement’s own grievance process, though a grievance-based dispute that gets filed with a court or agency brings the act back into play. Mediation conducted by a judge who might rule on the case is excluded, since a judge acting as mediator raises different concerns than a neutral third party would. So is mediation run within a school, if every party and the mediator are students, or within a correctional or juvenile facility, if everyone involved is a resident there.

Parties can also expand or narrow the act’s reach by agreement. If they agree in advance, in a signed record, or if the record of a proceeding reflects that all or part of a mediation is not privileged, the privileges described in sections 25-2933 to 25-2935 do not attach to that mediation or that part of it. That opt-out does not bind someone who never received actual notice of the agreement before making a mediation communication.