                                 CODE OF VIRGINIA

CONFIDENTIALITY BETWEEN PARTIES; EXEMPTION TO FREEDOM OF INFORMATION ACT (§
2.2-4119)

A. Except for the materials described in subsection B, all dispute resolution
proceedings conducted pursuant to this chapter are subject to the Virginia
Freedom of Information Act (&#xA7; 2.2-3700 et seq.).

B. All memoranda, work products, or other materials contained in the case file
of a mediator are confidential and all materials in the case file of a mediation
program pertaining to a specific mediation are confidential. Any communication
made in or in connection with a mediation that relates to the dispute, including
communications to schedule a mediation, whether made to a mediator, a mediation
program, a party or any other person is confidential. A written settlement
agreement is not confidential unless the parties agree in writing. Confidential
materials and communications are not subject to disclosure or discovery in any
judicial or administrative proceeding except (i) when all parties to the
mediation agree, in writing, to waive the confidentiality; (ii) to the extent
necessary in a subsequent action between the mediator and a party for damages
arising out of the mediation; (iii) statements, memoranda, materials and other
tangible evidence, otherwise subject to discovery, which were not prepared
specifically for use in and actually used in the mediation; (iv) where
communications are sought or offered to prove or disprove a claim or complaint
of professional misconduct or malpractice filed against the mediator; (v) where
a threat to inflict bodily injury is made; (vi) where communications are
intentionally used to plan, attempt to commit or commit a crime or conceal an
ongoing crime; (vii) where communications are sought or offered to prove or
disprove a claim or complaint of misconduct or malpractice filed against a
party, nonparty, participant or representative of a party based on conduct
occurring during a mediation; (viii) where communications are sought or offered
to prove or disprove any of the reasons listed in &#xA7; 8.01-576.12 that would
enable a court to vacate a mediated agreement; or (ix) as provided by law or
rule other than the Virginia Freedom of Information Act (&#xA7; 2.2-3700 et
seq.). The use of attorney work product in a mediation shall not result in a
waiver of the attorney work product privilege. Unless otherwise specified by the
parties, no mediation proceeding shall be electronically or stenographically
recorded.

HISTORY: 2002, c. 633.