PROTECTING THE 

CONFIDENTIALITY OF 

DISPUTE RESOLUTION 

PROCEEDINGS 

A GUIDE FOR FEDERAL 

WORKPLACE ADR PROGRAM 

ADMINISTRATORS 

Interagency ADR Working Group 

Steering Committee 

April 2006
2

INDEX

 Page 

Introduction 3 

Chapter I Dispute Resolution Proceedings 

A. Overview 5 

B. Oversight Responsibilities Before the Dispute 21 

Resolution Session 

C. Oversight Responsibilities During the Dispute 26 

Resolution Session 

D. Oversight Responsibilities After the Dispute 30 

Resolution Session 

Chapter II Confidentiality Agreements 33 

Chapter III Agency Record-Keeping 38 

Chapter IV Evaluation of ADR Programs and Processes 44 

Chapter V Requests for Disclosure of Dispute Resolution 47 

Communications 

Chapter VI Non-Party Participants in the Dispute Resolution 60 

Session: Spouses, Family Members, Friends, and Union 

Representatives 

Appendix Chapter Summaries 64 
3

INTRODUCTION 

The Steering Committee of the Federal Interagency Alternative Dispute Resolution 

Working Group (IADRWG)1

 issues this Guide for use by administrators of workplace 

alternative dispute resolution (ADR) programs within federal government departments 

and agencies. Its primary purpose is to provide practical guidance on the application of 

the confidentiality provisions of the Administrative Dispute Resolution Act of 1996 (“the 

ADR Act”; 5 U.S.C. § 574) to federal workplace dispute resolution. Others, including 

administrators of other ADR programs, ADR professionals and anyone interested in 

ADR, may also find the information contained in the Guide to be valuable when ADR 

Act confidentiality applies to their practice. This Guide encourages the integration of the 

ADR Act and its legislative intent with agency policy and practice. The Guide is not 

regulation or policy and is not legally enforceable. The Guide is intended to provide 

helpful advice on potentially difficult questions, to executive branch ADR program 

administrators engaged in workplace ADR. 2 

This Guide focuses solely on confidentiality related to the use of mediation in federal 

workplace disputes. Confidentiality under the ADR Act may apply also to other ADR 

processes used to address workplace disputes, such as facilitation, conciliation and use of 

ombuds. 

“ADR program administrator” is the term used throughout this Guide to define the 

individual or individuals in an agency responsible for implementing procedures that 

allow parties to use ADR. The ADR program administrator’s role differs from agency to 

agency. This is a full-time role in some offices, while in other offices, this is a part-time 

position. In some agencies and departments the ADR program administrator focuses 

solely on ADR policy and implementing procedures. In these instances, the program 

administrator is not a neutral in terms of the confidentiality provisions of the ADR Act. 

In other agencies and departments, the ADR program administrator is involved in 

assisting parties in resolving the dispute by serving as the mediator or advising the 

mediator. In these instances, the program administrator may be a neutral. 

This Guide extends the guidance issued by the U.S. Attorney General’s Federal ADR 

Council, Report on the Reasonable Expectations of Confidentiality Under the 

Administrative Dispute Resolution Act of 1996, 65 Federal Register 83085, December 29, 

 

1

 The Federal Interagency ADR Working Group was established in 1998 by Congress and the President 

to coordinate, promote, and facilitate the effective use of ADR in the government, pursuant to the 

Administrative Dispute Resolution Act of 1996 and a White House Presidential Memorandum. 

2

 This Guide applies to the internal management of the civilian executive branch. It is not intended to 

create any right or benefit, substantive or procedural, enforceable at law or in equity, by a party against the 

United States, its agencies, its officers or any other person. It is intended to be relied upon as a source of 

constructive suggestions for the effective administration of agency workplace ADR programs, but is not to 

be accorded “deference” as an “agency interpretation.” Questions regarding interpretations of applicable 

law, regulation and policy should be raised with the appropriate legal counsel in each department and 

agency. 
4

2000 (“the 2000 ADR Guidance”), which may be found at the www.adr.gov, the 

IADRWG website. It should be used in concert with the confidentiality provisions of the 

ADR Act as well as agency confidentiality policies and guidance. Another useful 

resource on this topic for ADR program administrators and general counsel staff is the 

Guide to Confidentiality Under the Federal Administrative Dispute Resolution Act, 

published by the American Bar Association ("the 2005 ABA Guidance"). 

Congress enacted the ADR Act to encourage and support the use of ADR within the 

federal government. The provisions of the ADR Act establish requirements regarding the 

confidentiality of communication during ADR processes involving federal agencies. 

These requirements attempt to balance the goals of open government with the need to 

protect the assurance of confidentiality necessary to encourage free communications 

within the ADR process. Some of these requirements may differ from the confidentiality 

provisions under which private practitioners function. This is because various state laws 

provide different confidentiality protections affecting private neutrals. 

Confidentiality is a critical component of a successful ADR process. Guarantees of 

confidentiality allow parties to freely engage in candid, informal discussions of their 

interests to reach the best possible settlement of their dispute. A promise of 

confidentiality allows parties to speak openly without fear that statements made during an 

ADR process will be disclosed to others. Confidentiality also can reduce posturing and 

destructive dialogue among parties during the resolution process. 

It is essential that neutrals and parties be informed of the confidentiality protections 

available under the ADR Act and of the limitations to that protection. An ADR program 

administrator should take the steps necessary to assure that both internal and external 

neutrals understand the confidentiality provisions that apply to federal ADR programs 

and that parties are adequately informed of these provisions. 

Each chapter of the Guide includes a description and discussion of the issues, a legal 

analysis, and questions and answers related to confidentiality as it pertains to an aspect of 

a workplace ADR program. The first chapter discusses issues important to remember 

throughout a dispute resolution proceeding. This chapter covers the various stages – 

before, during, and after the actual dispute resolution session – of a dispute resolution 

proceeding. The remaining five chapters discuss particular issues regarding 

confidentiality – i.e., confidentiality agreements, record-keeping, program evaluation, 

access requests, and non-party participants. Effort has been taken to minimize repetition 

of legal analysis and guidance within the chapters of this Guide; however, such repetition 

has not been removed where the same material is critical to the understanding of multiple 

issues addressed. In most instances, reference is made to the relevant passage in another 

chapter where the issue in question is addressed in greater detail.
5

CHAPTER I 

DISPUTE RESOLUTION PROCEEDINGS 

A. OVERVIEW

This chapter provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality during the various stages 

of a dispute resolution proceeding (i.e., intake, assessment, convening, dispute resolution 

session, authority clearance and agreement implementation). 

General Description

The requirement to maintain the confidentiality of information received by an ADR 

program depends primarily on whether an ADR program administrator, a member of 

his/her staff, a volunteer, a collateral-duty person and/or an outside contractor may be 

deemed a “neutral” for purposes of the particular dispute resolution proceeding. If so, the 

neutral must – with few exceptions – maintain the confidentiality of information obtained 

or generated on behalf of parties they assist during the dispute resolution proceeding. As 

discussed later, the role of a neutral used to support the mediation of federal workplace 

disputes may take several forms, including intake staff, convenors, assessors and 

mediators. 

The responsibilities of an ADR program administrator include identifying appropriate 

neutrals, understanding the extent of their obligation to maintain confidentiality, ensuring 

that neutrals are trained in and understand their responsibilities related to confidentiality, 

and providing support to the neutrals so that they can maintain this confidentiality. The 

2000 ADR Guidance encourages agencies to establish policies and practices that support 

the terms and legislative intent of the ADR Act. 

Legal Analysis

The following are terms and concepts used throughout this Guide. Additional legal 

analysis will be provided as it is relevant to individual chapters. 

A dispute resolution proceeding is a process in which:

• an alternative means of dispute resolution is used to resolve an issue in 

controversy; 

• a neutral is used; and 

• specified parties participate. 
6

A dispute resolution proceeding encompasses multiple stages, including intake, 

assessment, convening, the ADR session and activities necessary to execute a final 

settlement agreement between the parties (5 U.S.C. § 571(6)). 

A dispute resolution communication is any oral or written communication prepared for 

the purposes of a dispute resolution proceeding. The ADR Act states specifically, 

however, that a written agreement to enter into a dispute resolution proceeding or a final 

written agreement is not a dispute resolution communication. 

A neutral is a person who:

• functions specifically to aid the parties in resolving an issue in controversy; 

• is acceptable to the parties; and 

• has no conflict of interest with respect to the issues in controversy, unless such 

issues are disclosed in writing and the parties agree that the neutral may serve. 

A neutral may serve with or without compensation and may be a private individual, or 

employee of a federal agency, state, local or tribal government, public or private 

organization (5 U.S.C. §§ 583, 571(9), 573). 

The term neutral may be used by an agency to define a staff position with certain 

responsibilities to protect information pursuant to agency policy and procedures. Though 

the term is the same, to be considered a neutral under the ADR Act, a person must meet 

the ADR Act’s criteria applied on a case-specific basis. 

Neutral’s obligation of non-disclosure: 

A neutral is held to a high obligation regarding confidentiality. While there are some 

exceptions, the ADR Act states that a neutral “shall not voluntarily disclose or through 

discovery or compulsory process be required to disclose any dispute resolution 

communication or any communication provided in confidence to the neutral” (5 U.S.C. § 

574(a)). 

A party is:

• a named party in a federal proceeding; or 

• for proceedings without named parties, a person who will be significantly affected 

by a decision of a federal agency and participates in the proceedings. 
7

Parties’ obligation of non-disclosure: 

While parties also have an obligation of confidentiality, it is less than that of a neutral. 

Unless the parties and the neutral agree otherwise, the parties may disclose their own 

communications as well as statements made by other parties while in joint session (i.e., 

when all the parties are present). Parties may not, however, disclose communications 

generated by a neutral, even if these communications were made when all parties are 

present. 

Changing the confidentiality procedures of the ADR Act 

Parties may, with the consent of the neutral, agree to change the confidentiality 

provisions of the ADR Act as they pertain to a neutral’s obligations and, with appropriate 

consideration of the possible consequences, as they pertain to their own obligations. 

Such confidentiality changes are typically accomplished through parties entering a 

contract generally referred to as a confidentiality agreement. (See Chapter II, 

Confidentiality Agreements.) 

Changing a neutral’s confidentiality obligations: 

• The extent of a neutral’s obligations to maintain confidentiality may be changed 

under the ADR Act as long as the changes are: 

o made in writing; and 

o signed by the parties and the neutral (5 U.S.C. § 574(a)). 

• Parties may also agree among themselves to change a neutral’s obligations of 

confidentiality, but must inform the neutral prior to commencement of the dispute 

resolution proceeding. (5 U.S.C. § 574(d)). 

Changing the parties’ confidentiality obligations: 

• 5 U.S.C. § 574(b)(2) allows parties to decrease or waive the ADR Act’s 

restrictions on disclosure of their dispute resolution communications if all parties 

consent in writing. This allows parties to expand the types of communications 

they can disclose without violating the statute. 

• The right of parties to agree to increase their own obligations to maintain 

confidentiality is not provided for by the ADR Act and is an untested point of law. 

The Federal ADR Council in the 2000 ADR Guidance suggested that parties 

address the issue through the use of a contract. Practitioners disagree, however, 

on whether such agreements are enforceable if challenged. Program 

administrators are advised to carefully balance the considerations noted in the 

Legal Analysis section of Chapter II, Confidentiality Agreements, in determining 

whether to enter agreements that increase parties’ confidentiality obligations. 
8

Note that an agreement regarding confidentiality does not change the rights of people 

who did not sign it, such as coworkers. They may still have access – through Freedom of 

Information Act (FOIA) requests or other legal means – to some of the communications 

covered by a confidentiality agreement that are not otherwise protected by the ADR Act. 

(See Chapter V, Requests for Disclosure of Dispute Resolution Communications) 

Confidentiality Issues Raised During the Dispute Resolution Proceeding

Q1: When is someone serving as a neutral?

A1: There are three main criteria that must be met for a person to be considered a neutral 

under the ADR Act. 

1. The person must be acting to assist the parties in resolving a specific dispute. 

Session neutrals, such as mediators, are considered neutrals. Similarly, intake 

staff and convening professionals supporting parties in their use of ADR should 

be considered neutrals, as their work is exclusively focused on helping the parties 

resolve their controversy. 

2. The person must be acceptable to all parties. Usually, the process begins with one 

party contacting an ADR office. The acceptability of the neutral by that party 

constitutes acceptance of the neutral until such time as other parties are contacted. 

3. The person must have no conflict of interest with respect to the issues or parties, 

such as potentially benefiting from the outcome, having an obligation to enforce 

related statutes or regulations, or having a close relationship with one of the 

parties unless the conflicts are disclosed in writing and the parties agree that the 

neutral may serve. 

A neutral may be a private individual or a federal government employee. There may be 

more than one neutral on a particular ADR case; for instance, there may be a convenor 

and a session neutral. 

ADR program administrators are neutrals when they are helping the parties resolve their 

controversy by, for example, discussing ADR options with the parties, coaching and 

preparing them to negotiate, or by assisting the session neutrals in the mediation on 

behalf of the parties. Likewise, intake staff are neutrals when they are, for example, 

discussing the particulars of the case with the parties. 

ADR neutrals fulfill many roles in assisting the parties. Under most circumstances, a 

person may be appropriately considered a neutral while serving in the following roles: 
9

• helping the parties in resolving their dispute; and 

• fulfilling at least one of the following functions: 

o discussing information about the dispute with the parties to explore the use 

of ADR; 

o conducting intake for a specific case going to ADR; 

o helping parties identify and arranging for an appropriate ADR 

professional; 

o conducting convening (i.e., discussing the case with the parties prior to a 

session to help them prepare to negotiate effectively); and 

o assisting the parties toward resolving their dispute and/or reaching an 

agreement. 

Q2: Is an Equal Employment Opportunity (EEO) Counselor a neutral under the 

ADR Act? 

A2: No, the Equal Employment Opportunity Commission (EEOC) discourages EEO 

Counselors from acting as neutrals because of the potential perception of bias in favor of 

the agency (EEO Management Directive No. 110). Implicit in this view is the 

assumption that EEO Counselors, when acting in their counselor role, are not neutrals as 

defined under the ADR Act. 

Additionally, the EEOC recommends against using EEO Counselors as neutrals except as 

a last resort. Neutrals are often privy to information protected by the ADR Act, which 

may compromise their ability to serve as an EEO Counselor. Best practices used in 

agencies suggest that EEO Counselors should not serve as neutrals in a dispute in which 

they have provided counseling to an aggrieved individual. Additionally, investigators 

may not serve as neutrals in cases they are investigating. Likewise, neutrals should not 

serve as EEO Counselors or investigators in cases in which they are or have served as 

neutrals. 

Dilemma: Ming spoke with a counselor in the agency EEO Office and 

requested that his dispute be mediated. The ADR program 

administrator selected Karen, a trained mediator and fulltime EEO Counselor at the agency, to mediate the matter. 

Is Karen a “neutral” for Ming’s dispute? 

Solution: In accordance with best practices, most agency policies, 

the EEO laws, and EEOC guidance, Karen, as an EEO 
10

Counselor, should not serve as a neutral. However, as a 

last resort, Karen could mediate provided (1) Karen 

discloses in writing to all the parties that she is a full-time 

EEO Counselor at the agency, and (2) all parties agree 

that she may serve. 

Q3: How can an ADR program administrator ensure that individuals seeking ADR 

assistance understand the role and obligations of ADR program staff members who 

serve as neutrals? 

 

A3: The role and confidentiality obligations of persons who fill neutral functions need to 

be clearly articulated, whether their duties as neutral are collateral or full-time, and 

whether they are mediators or ADR program administrators. Relevant agency ADR 

documents – such as guidance, written procedures, brochures and confidentiality 

agreements – should explicitly specify the roles of neutrals as part of agency ADR 

processes. 

To ensure that individuals seeking ADR assistance understand the roles and obligations 

of ADR program staff members who serve as neutrals, an ADR program administrator 

should consider taking the following steps: 

• develop and provide to potential parties a model statement clarifying under what 

circumstances ADR program staff members are considered neutrals for purposes 

of the ADR Act; 

• post a sign or pledge on the door or the wall that includes the person’s title and/or 

office name, clearly identifies the person as a neutral, and states the information 

the neutral will/will not keep confidential; 

• develop, post and distribute materials – such as brochures, codes of conduct, 

articles for employee newsletters, or agency-wide email announcements – that 

include information about confidentiality; and 

• create a web site that provides an overview of how confidentiality will be 

protected. 

Special consideration should be taken by the ADR program administrators to assure the 

shared understanding of confidentiality obligations regarding federal employees of other 

offices who serve as neutrals on a collateral duty basis. ADR program administrators 

should consider the general suggestions below. 

• Contact the supervisor of the neutral serving on a collateral duty basis to discuss 

whether the supervisor perceives there to be any obstacles to the individual’s 
11

ability to uphold the confidentiality obligations required of neutrals under the 

ADR Act. 

• Discuss with appropriate agency officials whether modifications to the 

employee’s position description, or other means of formalizing the neutral role, 

would be beneficial. The position description should identify the employee as a 

neutral and set out expectations regarding confidentiality, including clarification 

of the circumstances in which this person may act as a neutral. 

• Clearly delineate to the neutral, to co-workers, and to potential parties, when the 

person is serving as a neutral and when she/he has other responsibilities. 

Dilemma: Gloria is a bench scientist at a federal agency and a 

trained mediator. The ADR program administrator would 

like to include her on the roster of neutrals for the agency. 

Assuming Gloria agrees, what steps can the ADR program 

administrator take to ensure that Gloria will be able to 

maintain confidentiality within the agency when she 

mediates? 

Solution: As part of the supervisory approval process, explain to the 

supervisory chain that Gloria will be unable to share with 

her supervisors any information about her mediations other 

than the time(s) and location of the mediation sessions. 

The ADR program administrator may also want to consider 

how she/he can provide to his/her supervisor an evaluation 

of Gloria’s performance as a neutral. Finally, discuss with 

Gloria’s supervisor and the personnel office other ways of 

clarifying her confidentiality restrictions, such as whether 

her position description should be modified to reflect her 

collateral duty status as a neutral, or whether to post the 

relevant code of conduct on her door. 

Q4: What general actions should an ADR program administrator take to ensure 

that an appropriate level of confidentiality is maintained in ADR program 

operations? 

A4: An ADR program administrator should be aware of agency policy regarding 

disclosure of information, and ensure that ADR program practice standards are consistent 

with the ADR Act. An ADR program administrator can accomplish this by considering: 

• limiting email communications to logistics;

• understanding all agency policies that require the disclosure of information by 

agency staff and ensuring that parties are advised of these policies;
12

• preparing model confidentiality agreements that incorporate such policies;

• locating the ADR office and dispute resolution sessions in a manner that protects 

the privacy and confidentiality of parties (e.g., so that co-workers will not see the 

parties entering into, participating in, or exiting from rooms in which dispute 

resolution sessions and related meetings are to be held and so that parties’ voices 

will not be heard from outside of these rooms); 

• ensuring that phone, email and other communications are secure; and

• if a computer is to be used in drafting a resolution or settlement agreement, 

ensuring that it is a secure computer which has an appropriate password 

protection mechanism or restricted access (i.e., ideally not part of a network, with 

its own printer) and is not located in a public area.

Q5: What actions should the ADR program administrator take to ensure that an 

appropriate level of confidentiality is maintained by session neutrals? 

A5: There are several steps the ADR program administrator should consider taking in 

order to ensure appropriate confidentiality by session neutrals, including: 

• ensuring that neutrals are trained regarding confidentiality obligations, including: 

o the provisions of the ADR Act, 

o the 2000 ADR Guidance, and 

o relevant agency policy that is incorporated into confidentiality agreements; 

• incorporating the role and responsibilities as a neutral in staff personnel position 

descriptions and performance agreements; 

• creating an appropriate work environment for the neutrals addressing issues 

related to confidentiality (e.g., privacy, records management/storage and 

database/file security); 

• establishing and communicating disciplinary steps/process to address violations of 

confidentiality by neutrals; and 

• developing procedures and ensuring support to assist neutrals subjected to 

inappropriate demands for access to information. 

Q6: May parties or the agency adopt confidentiality protections different from 

those provided by the ADR Act? 
13

A6: Yes, the parties may provide, by contract, for a greater or for a lesser degree of 

confidentiality than that provided for in the ADR Act. However, parties should be made 

aware of the potential enforceability issues associated with such contractual 

confidentiality agreements. (See the Legal Analysis section above). 

Dilemma: Bill and Tanya have agreed to mediate their very sensitive 

dispute. They become concerned, though, when they learn 

that, since they are the only parties, under the ADR Act Bill 

is permitted to tell his buddies about what Tanya says, and 

Tanya is permitted to tell her friends what Bill says in the 

dispute resolution session. They ask the ADR program 

administrator if there is anything they can do to address 

their concerns regarding confidentiality. 

Solution: Before responding, the ADR program administrator should 

consult with agency legal counsel to determine the 

agency’s position on establishing confidentiality 

protections beyond those provided for in the ADR Act. 

(See Chapter II, Confidentiality Agreements.) If the agency 

policy permits, the ADR program administrator could 

explain that they can draft and sign a contract that states 

that both parties agree not to disclose anything said during 

the mediation, unless this disclosure is to authorize or 

implement a settlement. The ADR program administrator 

should clarify, however, the limitations of the contract. For 

example, the contract may not protect the parties from 

having to disclose the information if they receive a 

subpoena from someone not at the table. The contract also 

will not automatically protect the parties from a FOIA 

request. (See Chapter V, Requests for Disclosure of Dispute 

Resolution Communications.) 

Q7: What should an ADR program administrator advise a neutral who has heard 

from a party that he/she has violated a law? 

A7: Under the ADR Act, the neutral may disclose a communication if it is “required by 

statute to be made public.” There are very few statutes that meet this definition. (See 

2000 ADR Guidance.) However, even if information is allowed to be disclosed by this 

exception, the ADR Act underscores that the neutral can make the communication public 

only if there is no one else who can disclose it. 

Additionally, a few statutes have provisions that might require a federal employer to 

disclose information regarding a violation of law. It is beyond the scope of this guidance 

to provide an analysis of these statutes and their relationship to the confidentiality 

provisions of the ADR Act. If an ADR program administrator is concerned about a 
14

potential statutory conflict, he/she should contact the General Counsel office. 

Additionally, Chapters III and V of this Guide provide additional information and 

suggestions on this topic. 

Q8: Statutes such as the Inspector General Act and Whistleblower Protection Act 

may impose an obligation on agency staff to disclose certain classes of information. 

As a result, some agencies have policies requiring employees to report waste, fraud, 

abuse, sexual harassment or other forms of misconduct. What should an ADR 

program administrator advise a neutral regarding obligations to protect such 

information that is disclosed during a dispute resolution proceeding? 

A8: Under the ADR Act, a neutral is precluded from disclosing dispute resolution 

communications with few exceptions. However, other statutes, such as those mentioned 

above, may impose obligations to disclose information. The ADR program manager 

should consider discussing with agency general counsel this potential tension between the 

ADR Act and other statutes requiring disclosure to determine appropriate agency policy 

and practice. (See Chapter V, Requests for Disclosure of Dispute Resolution 

Communications regarding the tension between the ADR Act and other laws or 

regulations.) 

Dilemma: During a separate meeting with the mediator (i.e., a 

caucus), Mark discloses to the neutral that he abused his 

government credit card by using it to buy multiple personal 

items. The mediator believes that is likely a violation of the 

government ethics regulation prohibiting waste, fraud, and 

abuse. During a break, the mediator approaches the ADR 

program administrator and asks whether to disclose the 

information. What does the ADR program administrator 

tell him? 

Solution: The ADR program administrator should tell him that, 

under the ADR Act, there is no applicable exception to 

justify the neutral’s disclosure of this information. 

However, the ADR program administrator should further 

explain actions he can take based on any agency policy 

regarding the tension between the ADR Act and other 

statutes requiring disclosure. For example, if the parties 

signed a confidentiality agreement stipulating that criminal 

activity, fraud, waste, and abuse may or must be disclosed, 

he may disclose the information. 

When a mediator reveals allegation in caucus

Dilemma: There is a mediation involving three parties: Yasmin, the 

complainant; Sean, the timekeeper; and Angie, Yasmin’s 

supervisor. There is a joint session in which only the time 
15

and attendance disputes were raised. In caucus with the 

external mediator, Yasmin reveals several allegations of 

harassment against a manager in another office. Yasmin 

asks the mediator to discuss the allegations with Angie, her 

supervisor, but asks that the allegation not be revealed to 

the offending manager or to anyone else. The mediator 

goes into caucus with Angie and reveals the allegations of 

harassment against the other manager, adding that Yasmin 

does not want the allegations revealed to anyone. Angie, 

aware of the agency’s strict anti-harassment policy, advises 

the mediator that, under agency policy, he has no choice 

but to immediately initiate a preliminary inquiry into 

whether harassment has occurred, and, if the inquiry 

determines that harassment has occurred, take immediate 

action to stop such harassment. Under the agency’s policy, 

Angie must also notify the alleged harassing manager’s 

office director. The mediator asks for a break to consult 

with the ADR program administrator for guidance on 

whether he should tell Angie that the ADR Act prohibits her 

from disclosing these dispute resolution communications. 

Solution: The ADR program administrator should advise the 

mediator to explain to Angie, the supervisor, that 5 U.S.C. 

§ 574(b) of the ADR Act says that, with certain exceptions, 

parties to dispute resolution proceedings shall not disclose 

dispute resolution communications from the neutral. None 

of the exceptions apply here. The ADR program 

administrator should further advise the mediator on any 

agency policy regarding the tension between the ADR Act 

and other statutes requiring disclosure.

When allegations are made in joint session

Dilemma: In joint session focused on interpersonal issues, Liam, the 

complainant tells Andrew, his supervisor, that a co-worker 

has been harassing him. Andrew informs Liam he will take 

immediate action to stop the harassment. 

Solution: The ADR program administrator should be sure that all 

mediators know and that parties understand that, under 5 

U.S.C. § 574(b)(7) of the ADR Act, there is no prohibition 

on a party disclosing the communications of another party 

when they are provided to all parties to the dispute 

resolution proceeding. 
16

When a joint session is confidential

Dilemma: The parties, in consultation with appropriate legal counsel, 

have signed a mediation agreement (i.e., a contract) 

providing that they will not disclose any communications 

made by the parties during the dispute resolution 

proceeding. During joint session the complainant reveals 

an allegation of harassment. The supervisor says that she 

would like to report these allegations and address them. 

What should the ADR program administrator advise the 

mediator to do? 

Solution: The ADR program administrator should ensure mediators 

know that, although the ADR Act does not protect joint 

session communications, the parties may, in compliance 

with agency policy, contract independently to keep dispute 

resolution communications made in joint sessions 

confidential. (See the Legal Analysis section.) The 

supervisor, as a party, risks being in breach of the contract 

if he or she discloses the communication. 

Q9: When may an intake, session or other neutral disclose information protected by 

the ADR Act to the ADR program administrator? 

A9: The neutral may disclose dispute resolution communications, and communications 

provided in confidence to the neutral, only to other neutrals assisting the parties to 

resolve this dispute. Before the session neutral makes disclosures of information 

protected by the ADR Act to the ADR program administrator, consider the following. 

• Is the ADR program administrator a neutral with respect to this dispute? If so, the 

neutral may disclose freely, but the ADR program administrator must maintain 

the confidentiality of the information consistent with the ADR Act. If the ADR 

program administrator is a neutral who has the job of supporting and guiding 

session neutrals, she/he is fulfilling this function by hearing information that the 

session neutral shares to better assist the parties in resolving their dispute. 

• If the ADR program administrator is not a neutral with respect to this dispute, 

she/he may only obtain and disclose information from the neutral that is not a 

dispute resolution communication or otherwise provided in confidence to the 

neutral. For example, an agreement to mediate, information and data that are 

necessary to document an agreement reached and information for research or 

educational purposes can be discussed with the ADR program administrator. 

Dilemma: Paul, the ADR program administrator, schedules cases and 

identifies appropriate neutrals for the agency’s workplace 
17

disputes. His cases are referrals from the agency EEO 

Office and the personnel office. In this particular matter, 

Paul has had no contact with the parties other than to 

confirm date and location. Is Paul a neutral regarding this 

matter? 

Solution: Paul, who merely schedules cases and does not have 

contact with the parties other than to confirm date and 

location, is not a neutral for this particular dispute because 

he is not aiding the parties in resolution of their dispute. 

Under these circumstances, the session neutral cannot 

share any dispute resolution communications with Paul; 

unless an exception under the ADR Act applies. 

Dilemma: Elena, the agency ADR program administrator, met with 

the parties individually prior to the session to help the 

parties understand the process and focus the issues to be 

mediated. Is Elena a neutral regarding this matter? 

Solution: Elena is a neutral for purposes of this particular dispute. 

The session neutral can freely share any information with 

Elena regarding the mediation session. 

Dilemma: Doug is the Director of the small agency EEO office. The 

only agency workplace ADR function is located in the EEO 

office, but there is no specified ADR program 

administrator. Both collateral duty and full time 

counselors handle incoming cases and offer mediation to 

the complainants. If the complainant is interested, the 

counselor sends the information to Doug who arranges the 

logistics of the mediation. Is Doug a neutral? What can 

the session neutral discuss with Doug? 

Solution: This is a difficult situation because Doug directly 

supervises the session neutral, specifically on her ability to 

mediate. However, as the office is structured, Doug is not 

a neutral. He is not functioning specifically to aid the 

parties in resolving a controversy. He is not engaged in the 

substance of the dispute, just the logistics. Additionally, as 

the head of the office charged with implementing the EEO 

laws, the situation is rife with potential conflicts of interest. 

Therefore, under these facts, the session neutral may not 

share dispute resolution communications with Doug. 

 To address the concerns, Doug could designate a separate 

ADR program administrator in or outside his office. That 
18

person could then serve as a neutral and help to mentor 

and evaluate the on-staff neutral. Alternatively, the neutral 

could share information with Doug if all parties to the 

dispute resolution proceeding and the neutral consent in 

writing. 

Q10: Sometimes the parties or the neutral determine that the participation of an 

expert or resource person in the ADR process would be helpful. How can the ADR 

program administrator protect the confidentiality of the process when “outsiders” 

are brought in? 

A10: Under the ADR Act, non-party participants generally are not bound to maintain 

confidentiality. They may, however, sign a contract binding them to confidentiality if all 

participants agree. (See Chapter II, Confidentiality Agreements.) 

The participation of resource persons may be arranged ahead of time or may be initiated 

during the session. These individuals may be experts in a substantive area or they may be 

agency employees with expertise in an area that pertains to the dispute or to the potential 

resolution (e.g., a pension/benefit expert, if retirement is expected to arise as an issue or 

option). 

Under certain circumstances, non-party participants may be considered “neutrals” under 

the ADR Act for purposes of the confidentiality provisions. To be considered a neutral, 

they must: 

• either be brought into the proceedings by the session neutral and acceptable to the 

parties or be brought into the proceedings by the parties jointly; and 

• meet the other statutory requirements for “neutral.” (See Q1, above.) 

If only one party brings the expert or resource person into the session, the person is not a 

neutral under the ADR Act. 

An ADR program administrator should consider briefing resource persons, whether they 

are “neutrals” or simply non-party participants, on confidentiality provisions prior to their 

participation in the ADR process. If they are to participate in the session, they should be 

encouraged to sign the confidentiality agreement. If they are brought in mid-session and 

are only answering questions and not hearing confidential dispute resolution 

communications, signing of the confidentiality agreement may not be necessary. 

Dilemma: Bill, an employee who is mentally impaired, has agreed to 

enter mediation with his supervisor. The parties have 

agreed that Celia, a vocational rehabilitation counselor 

with relevant expertise, will participate in the session as a 

resource person. The mediator asks the ADR program 
19

administrator whether Celia is a neutral, and, if not, how to 

ensure the parties’ confidentiality. 

Solution: The rehabilitation counselor is a neutral because she will 

be assisting the parties to resolve their dispute and not 

serving as an advocate for either party. Both parties agree 

that Celia should participate. As a best practice, the ADR 

program administrator or the mediator should spend time 

with Celia prior to the session explaining confidentiality 

provisions. Celia should sign the confidentiality 

agreement, along with the other participants. 

Dilemma: Ariana, the session neutral, is mediating a dispute between 

a geologist and his supervisor over the employee’s latest 

performance evaluation. During the session, Ariana 

proposes bringing in a geologist who has no relationship to 

either party to advise her on technical issues. The parties 

concur. Ariana asks the ADR program administrator 

whether the resource geologist is a “neutral.” 

Solution: The resource geologist is a neutral because she meets all 

the criteria under the ADR Act and was selected by the 

neutral. The resource geologist has all the protections and 

obligations of neutrals under the ADR Act. The resource 

geologist should sign the confidentiality agreement, along 

with the other participants. 

Dilemma: Aron, a manager, and Michael, an employee, are mediating 

a dispute involving the amount of Michael’s pension. 

Michael has brought a pensions expert to assist him in 

explaining the technical aspects of his case. The session 

neutral asks the ADR program administrator whether the 

pension expert is a neutral. 

Solution: The pension expert is not a neutral because Michael 

brought her into the process to assist him. In this capacity, 

she has neither the obligations nor the protections of the 

ADR Act. The pension expert should sign the 

confidentiality agreement, along with the other 

participants. 

Q11: Does the answer to the question above change if the "outsider" is a personal 

representative of one of the parties? 
20

A11: Yes. As noted in the 2000 Guidance, consistent with common legal practice, the 

obligation of parties extend to their representatives and agents. Therefore, a personal 

representative is held to the same confidentiality obligations as a party. 
21

CHAPTER I 

DISPUTE RESOLUTION PROCEEDINGS 

B. OVERSIGHT RESPONSIBILITIES BEFORE THE DISPUTE RESOLUTION 

 SESSION 

This section provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality during the intake, 

assessment and convening stages of the Dispute Resolution Process. It also discusses 

what to do when an employee first contacts an ADR program staff member seeking 

general information about the agency’s ADR program. 

General Description

The confidentiality provisions of the ADR Act are intended to shield from disclosure 

communications between an employee and an ADR program staff member pertaining to a 

particular dispute. The confidentiality protections of the ADR Act start when the 

employee first contacts an ADR program staff member concerning a dispute. 5 U.S.C. § 

574(a) and (b) emphasize the integrity of dispute resolution proceedings in general and 

provide assurance to parties in future cases that their communications will remain 

confidential. 

Intake refers to the process used by the ADR program to capture specific information 

pertaining to a particular dispute from the individual who initiated contact with the ADR 

program. Intake activities may include setting the date, time, and place for the dispute 

resolution session, as well as case development (such as gathering enough information to 

determine who the right parties are to bring to the table to reach a resolution to the 

dispute that is effective and can be implemented). 

Assessment refers to the process of discussing the ADR options and the processes they 

entail, and designing the process for use in a particular case, with the participation of the 

parties. Assessment may also refer to the neutral’s review of a case to determine whether 

it is suitable for resolution through ADR, and, if so, which ADR process is most 

appropriate. 

Convening refers to the process of preparing the parties to participate in ADR. 

Depending upon the structure of the particular ADR program, some convening tasks may 

overlap elements of the assessment and/or intake. 
22

Confidentiality Issues Raised During Initial Contacts and Program Intake

Q1: When an employee contacts an agency ADR program staff member seeking 

general information about the agency’s ADR program, are the communications 

confidential under the ADR Act? 

A1: No, the employee requesting general program information has not indicated an 

expectation of confidentiality. The employee is not discussing a particular dispute or 

issue in controversy and therefore not speaking to the ADR program staff member in 

his/her capacity as a neutral. 

Q2: When an employee first contacts an agency ADR program staff member 

seeking advice about resolving a specific dispute or seeking to enter a workplace 

ADR process, are the communications confidential under the ADR Act? 

A2: Yes, the agency ADR program staff member performing intake duties and 

responding to questions about ADR could be appropriately identified as a neutral and 

therefore the communications would be confidential under the ADR Act. The employee 

has a reasonable expectation that such communication with the ADR program staff 

member is confidential because the discussion is about a process to resolve a dispute 

through an ADR process. In other words, the employee does not expect that the ADR 

program staff member would divulge the information imparted to him/her. (See 2000 

ADR Guidance.) Agency policy and practice should dictate that ADR program personnel 

performing intake duties identify themselves as neutrals and explain to parties seeking 

assistance the confidentiality of their communications. 

Dilemma: Mary, an employee, contacts her agency ADR program 

seeking assistance in resolving a dispute and describes a 

dispute to Joelle, an intake person. 

Solution: The conversation is confidential because Joelle obtained 

substantive information about the dispute and is assisting 

parties in resolving an issue in controversy. 

Q3: Is the completed intake form confidential? 

A3: Yes, unlike an EEO intake form, the ADR intake form – used to initiate assistance 

for the parties – is a dispute resolution communication. It is confidential if the form 

includes information about a specific individual(s) and/or dispute. The neutral should 

ensure that the completed intake form remains confidential. The ADR program 

administrator should be aware of the requirements under the Federal Records Act 

regarding the intake form. (See Chapter III, Agency Record-Keeping.) 
23

Q4: Is the information provided to or by a neutral during a convening and case 

assessment automatically covered by the confidentiality provisions of the ADR Act? 

A4: Yes, communications between a neutral and a party during a convening and case 

assessment to assist in and resolve a dispute are protected by the confidentiality 

provisions of the ADR Act. Some ADR programs may conduct case assessments and 

otherwise share information among neutrals in the ADR program as an integral part of its 

procedures. There may be more than one neutral associated with a case during the course 

of a dispute resolution process (e.g., an intake neutral, a convening neutral, as well as the 

neutral that facilitates a face-to-face proceeding). Any such information shared between 

neutrals for the purpose of assisting the parties is likewise protected. 

Q5: Does the ADR Act provide for confidentiality when a non-neutral individual, 

other than as an ADR party, participates in case assessment or convening? 

A5: No, in some cases an agency representative will gather information regarding a 

dispute to assist the agency in making a determination as to whether to participate in 

ADR. Such a role might be filled, for example, by the civil right officer or a labormanagement representative. That person is acting as an advocate for the agency to 

determine the best interests of the agency. This is not a neutral function, because the 

person is not aiding both parties in resolving the dispute, and, therefore, the ADR Act 

does not provide for confidentiality. To protect the credibility of the ADR program, 

neutrals should ensure that confidential dispute resolution communications or 

communications provided in confidence to the neutral will not be shared with non-neutral 

agency personnel. 

Q6: Are written case assessment reports confidential?

A6: Yes, if the assessor is a neutral for that case, the report is protected by the ADR Act. 

Creation of an assessment report may, however, constitute a record under the agency’s 

record-keeping procedures. An ADR program administrator should evaluate the benefits 

of having a written report for documentation and evaluation purposes in relation to the 

requirements to maintain the confidentiality of the report. (See Chapter III, Agency 

Record-Keeping). 

Q7: What can an ADR program administrator do to protect confidentiality when 

an individual contacts a convenor/assessor informally? 

A7: An ADR program administrator should consider advising the convenor/assessor to 

explain to the individual that she/he is a neutral. It may be helpful for the neutral, even at 

this informal stage, to take only limited notes. Whether such notes are subject to federal 

record keeping requirements is discussed in Chapter III, Agency Record-Keeping. 
24

Q8: Is it necessary for the neutral conducting a convening (convenor) and parties to 

sign any confidentiality agreement?

A8: No, convenors, who may include persons conducting intake, generally do not sign 

confidentiality agreements. However, such a practice could constitute an added 

confidentiality protection. Sometimes convening includes joint discussions, such as 

conference calls, with the parties to reach agreement on procedures. In these cases, it 

may be beneficial for the participants to sign the confidentiality agreement before such 

discussions, to memorialize the parties’ expectations regarding confidentiality of dispute 

resolution communications during convening activities. Because convening may be done 

telephonically, it may be necessary to create a method for remotely obtaining the 

signatures of parties, such as through the exchange of confidentiality agreement signature 

pages via facsimile. 

Q9: What actions can an ADR program administrator take to ensure that an 

appropriate level of confidentiality is maintained for all dispute resolution 

communications that occur before the dispute resolution session? 

A9: An ADR program administrator should consider taking the following steps: 

• define the ADR process in all agency documents and information to include 

intake, assessment, and convening, if such steps are part of the agency’s ADR 

program; 

• appropriately identify neutrals who perform intake, assessment, and convening 

functions to those potentially interested in using ADR; 

• train neutrals to inform employees about their role and when confidentiality 

applies; 

• appropriately educate agency staff of the ADR program and confidentiality 

protections afforded communications; 

• identify which records are necessary to ADR program operations and determine 

how to safeguard the confidentiality documents that must be maintained; and 

• establish position descriptions for persons who fill intake/assessor/convenor 

functions, whether collateral-duty or full-time, which specify and explain that 

these roles are neutral roles. 
25

Summary

As the ADR program administrator, have I considered: 

• Deciding who is authorized to function as a neutral in my program? 

• Appropriately identifying the individual(s) as a potential neutral? 

• Identifying the neutral(s) in my program to agency staff and potential parties? 

• Educating ADR program staff, including those who engage in intake, assessment 

and convening, about the nature of their confidentiality and record keeping 

obligations? 

• Taking all necessary steps to ensure the program supports the neutral’s 

confidentiality? 

• Ensuring that the convening and assessment process is explicitly specified in 

agency documents and information as part of the ADR process for purposes of 

confidentiality? 

• Ensuring that the parties understand the role of a neutral and their responsibilities 

for confidentiality? 

• The benefits of having the parties sign a confidentiality agreement before 

substantive discussions begin? 

• Educating mediators, agency personnel, and other mediation participants, 

including resource persons, about the nature of their confidentiality obligations? 
26

CHAPTER I 

DISPUTE RESOLUTION PROCEEDINGS 

C. OVERSIGHT RESPONSIBILITIES DURING THE DISPUTE RESOLUTION 

 SESSION 

This section provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality during a dispute 

resolution session. A dispute resolution session begins following the appointment of a 

session neutral or the agreement of the parties to commence proceedings with the session 

neutral. 

General Description 

Once the intake and convening stages have been completed, the parties are ready to begin 

the dispute resolution session stage of the dispute resolution proceeding. This stage is the 

heart of the dispute resolution proceeding and is also the point at which the neutral and 

the parties actively work to resolve the dispute through the use of various ADR 

techniques in joint and private meetings or through telephone conversations. The dispute 

resolution session phase ends when the dispute is resolved, or the parties agree or neutral 

determines that the dispute cannot be resolved. 

The session neutral may be an employee of the federal government (internal neutral) or a 

private sector neutral (external neutral). 

Confidentiality Issues Raised During the Dispute Resolution Session

Q1: What actions should an ADR program administrator take to ensure 

appropriate confidentiality of discussions between the neutral(s) and the parties 

during the dispute resolution session? 

A1: An ADR program administrator should consider taking the following steps. 

• Ensure that neutrals are trained regarding the confidentiality requirements of the 

ADR Act and any agency policy that is incorporated into a confidentiality 

agreement regarding conduct of the dispute resolution session. This includes: 

o having neutrals become familiar with the 2000 ADR Guidance before 

commencing the dispute resolution session; 

o ensuring that the session neutral appropriately conveys the requirements of 

the ADR Act to the parties; 
27

o ensuring that the session neutral discusses with the parties the possible 

implications of modifying the confidentiality provisions of the ADR Act; 

and 

o ensuring that the session neutral advises the parties of the possible need to 

consult with the ADR program administrator during the session and that 

the ADR program administrator is bound by the confidentiality provisions 

of the ADR Act and any agreement he or she signs. 

• Recommend that the parties and the session neutral execute a confidentiality 

agreement prior to the start of the dispute resolution session. (See Chapter II, 

Confidentiality Agreements.) 

• Consider whether the room in which the dispute resolution session is being held 

provides sufficient protection of confidentiality so that the voices of the session 

participants will not be heard outside the room. 

• If a computer is to be used in drafting a resolution or settlement agreement, 

ensuring that it is a secure computer which has an appropriate password 

protection mechanism or restricted access (i.e., ideally not part of a network, with 

its own printer) and is not located in a public area.

• If the dispute resolution session is conducted by telephone, ensure that the 

communications are secure. 

• Provide to the neutral and each participant a packet of information: 

o summarizing the confidentiality provisions of the ADR Act (including the 

ability of the parties to modify the confidentiality provisions of the ADR 

Act) and any agency policy that may be agreed upon and apply at the 

dispute resolution session; 

o enclosing a model confidentiality agreement; and 

o outlining the key points that the mediator should cover in the opening 

statement. 

• Ensure that the neutral reminds the parties, at the conclusion of the session, of 

their obligation to maintain the level of confidentiality provided for by the ADR 

Act or the alternative level of protection, if they have agreed to one. 
28

Q2: During the dispute resolution session, the parties reach an apparent impasse, 

which the session neutral cannot overcome without consulting with a person outside 

the session. What direction should the ADR program administrator provide to the 

neutral? 

A2: The ADR program administrator should consider advising the neutral to first seek to 

have the parties obtain the needed information themselves. In the event that the parties 

are unable to obtain the information, the neutral should advise the parties of her/his 

potential need to confer with an ADR professional or non-party subject matter expert 

during the dispute resolution session. The session neutral may disclose facts to such 

persons to enable a fruitful discussion of possible approaches to resolve the apparent 

impasse, so long as the neutral stays within the bounds of the confidentiality requirements 

of the ADR Act. If the session neutral determines that information protected by the ADR 

Act needs to be disclosed to the non-party subject matter expert or ADR professional, the 

session neutral must obtain the permission of the parties before pursuing such 

consultation further. 

 

Q3: During the dispute resolution session, the session neutral and the ADR 

program administrator have a routine meeting to discuss the status of the session. 

What may the neutral disclose? 

A3: So long as the ADR program administrator is considered to be a neutral in this 

matter, the ADR program administrator is already bound to protect the confidentiality of 

the information presented by the parties. Therefore, the neutral may disclose as much 

information as she/he thinks necessary for the consultation to be effective. 

 

Q4: During a break in a dispute resolution session, the ADR program 

administrator is approached by an individual, such as a supervisor, interested in the 

outcome of the session and asks how the session is going. What may the ADR 

program administrator disclose? 

A4: The ADR program administrator should not disclose anything about the session. 

However, the ADR program administrator may note that a proceeding has occurred and, 

if a final settlement was arrived at, discuss the terms of the settlement with the party’s 

supervisor to the extent allowed by agency policy and procedures. The ADR Act does 

not protect a final settlement agreement from disclosure. If the ADR program 

administrator has knowledge of what was disclosed during the dispute resolution session, 

whether by actively participating in the session or by exercising supervisory oversight of 

the ADR program, the ADR program administrator may not disclose that knowledge. 

Q5: What should an ADR program administrator do if an agency policy is found to 

have reporting requirements that are more detailed than, or in conflict with, the 

ADR Act? What if the scope of the agency policy is more limited than that of the 

ADR Act? 
29

A5: Agency policies and guidance may require that certain information obtained by 

agency staff be disclosed to the agency. However, disclosure of such information will 

constitute a violation of the ADR Act, unless the parties agree to a modification of the 

ADR Act’s provisions through the incorporation of the agency disclosure requirements 

into a signed confidentiality agreement. (However, see the Legal Analysis Section, of 

Chapter II, Confidentiality Agreement.) It is the obligation of an ADR program 

administrator to ensure that parties are aware of any agency policies incorporated into 

confidentiality agreements that affect the provisions of the ADR Act. 

Q6: Should an ADR program administrator’s advice to a neutral be different if the 

session neutral is an internal agency staff member or an individual from outside the 

agency? 

A6: No, the general obligations of a neutral to ensure the confidentiality of dispute 

resolution communications is the same regardless of whether the session neutral is an 

internal agency staff member or an individual from outside the agency. 

Summary

As the ADR program administrator, have I considered: 

• Determining that the neutral is aware of, and will assist the parties in 

understanding, the scope of confidentiality protections provided by the ADR Act? 

• Ensuring that the neutral specifies to the parties what aspects of agency policy 

incorporated into a confidentiality agreement of the parties go beyond the ADR 

Act’s confidentiality protections or require the disclosure of information protected 

by the ADR Act? 

• Checking to see that the session neutral has reviewed the 2000 ADR Guidance 

before commencing the dispute resolution session, and understands the effect of 

any agency policy regarding confidentiality or requiring the disclosure of certain 

information? 

• Ensuring that the neutral will protect confidentiality through appropriate selection 

of session rooms, use of telephones, and the use of computers for drafting a 

resolution or settlement agreement or conveying other dispute resolution 

communications to parties? 

• Ensuring that the neutral’s opening statement states that he or she may need to 

consult with the ADR program administrator, other ADR professionals, or subject 

matter experts? 
30

CHAPTER I 

DISPUTE RESOLUTION PROCEEDINGS 

D. OVERSIGHT RESPONSIBILITIES AFTER THE DISPUTE RESOLUTION 

 SESSION

This section provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality following completion of 

the dispute resolution session, but prior to final settlement of the mediated dispute. 

General Description

The confidentiality provisions of the ADR Act protect dispute resolution communications 

that occur prior to the completion of a final agreement between the parties resolving the 

dispute through mediation. Because resolution of federal disputes typically requires 

execution of a formal settlement document by the parties and the agency, the final 

settlement may not occur until sometime after the end of the dispute resolution session. 

During this period, disclosure of dispute resolution communications may be necessary to 

allow the agency representative to have appropriate officials sign off on, or otherwise 

approve, the settlement agreement, and to enable the employee to seek a legal review of 

the settlement. 

Any communications that occur after execution of the final settlement between the parties 

are not protected by the ADR Act. 

Confidentiality Issues Raised After the Dispute Resolution Session

Q1: Upon completion of the dispute resolution session, the parties sign a draft , 

written settlement agreement and provide a copy to the neutral. What information 

regarding dispute resolution communications may the parties or neutral provide to 

agency officials?

A1: A party or neutral may disclose information protected by the ADR Act only to the 

extent necessary to obtain the required signatures on the settlement agreement (5 U.S.C. § 

574(g)). 

A best practice used by some agencies is to encourage the parties, rather that the neutral, 

to disclose information protected by the ADR Act to the extent necessary to obtain 

approval, i.e., proper signatures on the settlement agreement. Also, some agencies have 

written agency policies that state that agency personnel who receive information 

otherwise protected by the ADR Act to review or approve a settlement agreement, will 

keep this information confidential, or be subject to agency disciplinary proceedings if 

they do not. 
31

Q2: An agency official poses a question to the ADR program administrator who 

assisted the parties as a neutral regarding the reasoning behind a particular 

provision of a settlement agreement. She/he asks the ADR program administrator 

about the circumstances leading to the agreement. What may the ADR program 

administrator disclose? 

A2: A neutral may not discuss any information disclosed during the dispute resolution 

session. Consequently, the agency official should be referred to the parties, who may 

voluntarily disclose information protected by the ADR Act that may be relevant to 

determining the meaning of the settlement agreement (5 U.S.C. §§ 574(a), 574(b)(6)). If 

the agency official’s need for clarification from the neutral pertains to approval or 

implementation of the settlement agreement and the neutral has received prior permission 

from the parties to disclose information for this purpose, then the neutral may disclose the 

necessary information. If the agency official does not have a legitimate need to know 

(e.g., she/he is merely curious about the circumstances but can make an approval 

determination without the requested information), the neutral may not make the 

disclosure. 

Q3: Following execution of the final settlement agreement between the parties, an 

agency official asks the ADR program administrator for a copy of this agreement. 

May the ADR program administrator provide a copy to the official? 

A3: Yes, the ADR Act does not prohibit the disclosure by any party or the neutral of the 

final settlement agreement between the parties. Therefore, the final formally executed, 

written settlement agreement may be provided to agency officials. The final settlement 

agreement is specifically excluded from the definition of a dispute resolution 

communication protected by the ADR Act (5 U.S.C. § 571(5)). However, agency policy 

may put restrictions on how and to whom a final settlement agreement can be shared by 

agency staff. 

Q4: Following execution of the final settlement agreement between the parties, one 

of the parties wants to discuss with the neutral what occurred in the dispute 

resolution session. What advice should the ADR program administrator provide to 

the neutral? 

A4: The ADR program administrator should consider advising the neutral that if a party 

wishes to discuss his/her impressions or thoughts about the dispute resolution session 

with the neutral after the dispute resolution proceeding has concluded with the execution 

of a final settlement agreement, the neutral should inform the party that the conversation 

is not confidential. 
32

Q5: Following execution of the final settlement agreement between the parties, a 

dispute arises between the parties over the implementation of their agreement. One 

of the parties wants to discuss what occurred in the dispute resolution session with 

the ADR program administrator who assisted the parties as a neutral in an effort to 

clarify the intent of the settlement. Is the conversation covered under the 

confidentiality protections of the ADR Act? 

A5: No, if a party wishes to discuss his/her impressions or thoughts about the dispute 

resolution session with the ADR program administrator after the dispute resolution 

proceeding has concluded with the execution of a final settlement agreement, the ADR 

program administrator should inform the party that the conversation is not confidential. 

For confidentiality to apply to the current situation, the party would have to initiate a new 

dispute resolution case regarding the current dispute over implementation of the 

agreement. 

Summary

As the ADR program administrator, have I considered: 

• Ensuring that the session neutral understands she/he generally cannot disclose 

dispute resolution communications and communications provided to the neutral in 

confidence? 

• Suggesting that session neutrals have the parties acknowledge either orally or in 

writing that the neutral may disclose information protected by the ADR Act to the 

extent necessary to obtain approval of the settlement agreement? 

• Drafting an agency policy regarding disclosure of information protected by the 

ADR Act for purposes of approval of the settlement agreement? 
33

CHAPTER II

CONFIDENTIALITY AGREEMENTS 

This chapter provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality when the parties express 

in writing their mutual understanding on confidentiality as it applies to the dispute 

resolution proceeding. 

General Description

The ADR Act will apply to communications during a dispute resolution proceeding 

regardless of whether it is invoked by a confidentiality agreement. However, a 

confidentiality agreement is a way for parties, and the neutral(s) assisting them, to 

express their understanding and agreement on how communications and documents 

exchanged during a dispute resolution proceeding will be handled and protected. More 

formally, it is a contract between the parties that documents this common understanding 

and agreement. A confidentiality agreement is often incorporated into a broader 

contractual agreement, typically referred to as a mediation agreement, that outlines the 

procedures and rules that will be used to conduct a dispute resolution session, such as a 

mediation. 

Legal Analysis

Confidentiality agreements fall into three general classes, those that: 

• simply cite the ADR Act, 

• decrease (or waive) confidentiality protections, and 

• increase confidentiality protections beyond what the ADR Act provides. 

Citing ADR Act 

Citing the ADR Act in a confidentiality agreement emphasizes the intent of the parties 

and the neutral to be engaged in a proceeding that is granted the special protection found 

in the statute. 

Decreasing Confidentiality Protections 

The ADR Act expressly allows parties by written agreement to waive the confidentiality 

obligations on themselves. If all parties agree in writing, then the parties may disclose a 

dispute resolution communication. (See 5 U.S.C. § 574(b)(2)). A waiver agreement 

could be limited to certain topics, such as issues of national security, sexual harassment 

or other important agency concerns. 
34

The ADR Act, in two provisions, allows for agreements that free the neutral from 

confidentiality obligations. 

• If the parties and the neutral agree in writing, then a neutral may disclose dispute 

resolution communications. If the dispute resolution communication in question 

was provided by a non-party participant, then that participant must also sign the 

written agreement before the neutral may disclose the communication. (5 U.S.C. 

§ 574(a)(1). 

• The parties may also agree to allow the neutral to disclose dispute resolution 

communications, but they must inform the neutral prior to the commencement of 

the dispute resolution proceeding. (5 U.S.C. § 574(d)(1)) The language of this 

section does not require that the agreement be in writing or expressly state that the 

neutral must agree. However, as a best practice, the program administrator should 

advise the parties to document the agreement in writing. If a neutral does not 

wish to abide by the agreement, the neutral could withdraw from the dispute 

resolution proceeding. 

Increasing Confidentiality Protections 

Parties may agree to increase the neutral’s confidentiality obligations, but they must 

inform the neutral prior to the commencement of the dispute resolution proceeding. 

(5 U.S.C. § 574(d)(1)) (See bullet above) 

Whether parties may increase their own confidentiality obligations by written agreement 

is an untested point of law. Most often such provisions are considered to protect party to 

party communications in joint sessions. The Federal ADR Council in the 2000 ADR 

Guidance suggests that parties provide protection for such communications through use 

of a written confidentiality agreement. Practitioners disagree, however, on whether such 

agreements may be enforceable. In determining whether to include provisions in a 

confidentiality agreement to protect the confidentiality of “party-to-party” 

communications in joint sessions, program administrators should advise parties to 

balance the following considerations. 

Reasons to Consider Including Provisions 

• Promotes open discussions and may increase the amount and quality of 

information exchanged by the parties, leading to potential increase in the quality 

and number of successful resolutions 

• May support a party’s willingness to use mediation to resolve a dispute over more 

adversarial options 

• Supports the use of mediation techniques to improve the relationship between the 

parties through the greater use of joint sessions 
35

Reasons to Consider Not Including Provisions 

• Avoids the possibility that the provisions, if challenged, would be found by a 

court to not be enforceable, potentially resulting in the disclosure of statements 

presumed to be confidential 

• Reduces the time required and responsibility of the program administrator to 

educate parties appropriately prior to the mediation, since it avoids the need to 

ensure that the parties are informed of the potential consequences of a possible 

future challenge to such a provision’s enforceability and the relationship of the 

provision to possible reporting requirements 

• Simplifies the drafting of the confidentiality agreement 

If a program administrator has considered all of the factors above, using a written 

confidentiality agreement to increase their own confidentiality obligations might be a 

way to increase the open exchange of information and the use of mediation techniques 

which focus more on relationship building. 

NOTE: A confidentiality agreement is an agreement of the parties to enter into a dispute 

resolution proceeding and is, therefore, not protected from disclosure by the ADR Act. 

5 U.S.C. § 571(5) specifically excludes such agreements from protection under the ADR 

Act. 

In addition, dispute resolution communications between a neutral and a party that are 

protected from disclosure by the ADR Act are exempted from disclosure under the 

Freedom of Information Act. (5 U.S.C. § 574(j)) This FOIA exemption, however, may 

not apply to communications protected by a confidentiality agreement if such 

communications are not otherwise protected by the ADR Act. (See Chapter V, Requests 

for Disclosure of Dispute Resolution Communications) 

Confidentiality Issues Raised by a Confidentiality Agreement

Q1: What information might be included in a confidentiality agreement? 

A1: A confidentiality agreement should include information to show the understanding 

of the parties and the neutral about the scope and limitations of confidentiality protection 

that apply to the dispute resolution proceeding. At a minimum, it should include a simple 

statement affirming the intention of the parties and neutral that the provisions of the ADR 

Act apply. Many confidentiality agreements also include information highlighting 

certain details and limitations of the confidentiality protections of the statute, such as: 

• that all forms of communication (written and oral) may be protected; 

• that a party’s communications made available to all other parties (i.e.,

communications during a joint session) are not protected from disclosure by a 

party; and 
36

• that, if agency policy permits, parties have the ability to change the confidentiality 

protections of the ADR Act. 

An ADR program administrator should consider providing parties and neutrals with a 

model confidentiality agreement to facilitate their discussion and signature. 

Q2: What are examples of additional provisions that, if agency policy permits 

parties to do so, could be included in a confidentiality agreement? 

A2: Parties and neutrals assisting them sometimes agree to include provisions in 

confidentiality agreements that change or enhance protections provided by the ADR Act 

(see Legal Analysis section, above), such as agreements that specify that: 

• communications made by the parties in joint session, or those that are otherwise 

available to all parties, may not be disclosed by a party 

• the parties’ communications are also protected by other applicable authorities that 

restrict disclosures, including the Federal Rules of Evidence or the Administrative 

Procedure Act; 

• the parties will not subpoena the neutral(s) regarding matters relating to the 

dispute resolution proceeding; 

• there will be no verbatim recording of the dispute resolution proceedings such as 

an audio tape or a stenographic record; or 

• aspects of agency policy – including requirements to disclose certain information 

learned during a dispute resolution proceeding, such as fraud or sexual abuse – are 

not superseded by ADR Act confidentiality provisions in this particular ADR 

process. 

Q3: Should an ADR program administrator require the use of confidentiality 

agreements in all disputes? 

A3: Yes, although it is not required to obtain the protections of the ADR Act, there are 

substantial benefits to the parties, neutral(s) and ADR program in having a signed 

confidentiality agreement. Confidentiality agreements help parties clarify their 

understanding of confidentiality as it pertains to their dispute resolution proceedings. 

Confidentiality agreements provide parties an opportunity to craft provisions that meet 

their needs and ensure a record of their agreement. In addition, confidentiality 

agreements can allow an ADR program administrator to include additional protections 

required by some neutrals, such as protection from future subpoenas. A best practice is 

for the ADR program administrator to require parties and neutral(s) assisting them to 

enter into a confidentiality agreement in any dispute that, if not resolved, may lead to 

legal action between the parties. (See Legal Analysis section above.) 
37

Q4: When should a confidentiality agreement be signed? 

A4: A confidentiality agreement should be signed at the earliest possible time in the 

dispute resolution proceeding. This may serve as a way to ensure that the parties and all 

ADR program staff neutrals assisting the parties are aware of confidentiality 

requirements and protections. An ADR program administrator should consider 

presenting a confidentiality agreement for signature of each party and participating 

members of ADR program staff at the time of intake of the dispute. 

Summary

As the ADR program administrator, have I considered: 

• Ensuring that the parties and neutral(s) are educated about the purpose, and 

benefits of signing a confidentiality agreement? 

• If parties are considering using a written confidentiality agreement to increase 

their own confidentiality obligations, ensuring that the parties are aware of and 

have balanced the considerations noted in the Legal Analysis section above? 

• Requiring the signing of a confidentiality agreement in all appropriate disputes? 

• Providing parties and neutrals with a model confidentiality agreement that 

contains the following: 

o a statement of the intent of the parties and neutral(s) that the 

confidentiality provisions of the ADR Act apply to their communications; 

o an explanation of the scope and limits of the protections provided by the 

ADR Act and the ability of parties to agree to alternative protections; 

o inclusion of additional provisions, if appropriate, intended to enhance or 

change the confidentiality provisions of the ADR Act; and 

o an explanation of the impacts on confidentiality of any additional 

incorporated provisions, including relevant agency policy or guidance and 

their ability to protect communications from disclosure? 

• Retaining the original or a copy of the confidentiality agreement? 
38

CHAPTER III 

AGENCY RECORD-KEEPING 

This chapter provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality and meet the 

requirements of the Federal Records Act. 

General Description

Under the Federal Records Act, the records an agency representative creates and 

maintains are presumed to be federal records, and agencies are required to document 

many, if not most, of their functions. The ADR Act establishes requirements for ensuring 

the confidentiality of dispute resolution communications. These responsibilities have 

ramifications throughout the course of the dispute resolution proceeding, and influence 

how neutrals (both internal and external), under an ADR program administrator’s 

oversight, perform their dispute resolution duties. 

Legal Analysis

Under the Federal Records Act (44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 

3301 et seq.), federal agencies are required to create and maintain records that relate to 

their official functions. Agency heads are charged with this duty and must establish an 

effective and sustainable program for records management. Typically, agency heads 

delegate record keeping responsibilities under the Federal Records Act to program heads, 

such as the ADR program administrator. 

Only documents that are federal records are required to be maintained. Federal records 

are defined as: 

All books, papers, maps, photographs, machine readable materials, or other 

documentary materials, regardless of physical form or characteristics, made or 

received by an employee of a federal agency during its official business, and 

preserved or appropriate for preservation by that agency or its legitimate 

successor as evidence of the organization, functions, policies, decisions, 

procedures, operations, or other activities of the Government, 

or because of the informational value of data in them. 

The Federal Records Act specifically excludes the following from being defined as 

federal records: library and museum material, made or acquired, and preserved solely for 

reference or exhibition purposes; extra copies of documents preserved only for 

convenience of reference; and stocks of publications and processed documents (44 U.S.C. 

§ 3301). 
39

Once a document is deemed a record, the agency must determine how long it must be 

kept and whether the record is temporary or permanent; it does so by establishing a 

retention and disposal schedule to be approved by the National Archives and Records 

Administration (“NARA”; 44 U.S.C. § 3303a(a),(d)). Most federal records are temporary 

(“i.e., they do not have sufficient administrative, legal research, or other value to warrant 

their continued preservation”) (36 C.F.R. 1220.14). Some can be disposed of within a 

matter of days or months, while others must be retained for years. In either circumstance, 

the agency may dispose of the records according to the time period set out in the retention 

and disposal schedule approved by the NARA. 

While the Federal Records Act would require the maintenance of federal records relating 

to ADR programs, it does not impact the confidential status of records, which are 

protected dispute resolution communications under the ADR Act. In other words, federal 

records may need to be retained in accordance with the Federal Records Act, but if they 

are dispute resolution communications under the ADR Act, these records are confidential 

and access to them must be restricted. 

Confidentiality Issues Raised Under Federal Record-Keeping Requirements

Q1: Are an internal neutral’s notes of the dispute resolution proceeding federal 

records? 

A1: It depends. If the notes are rough notes (the personal recollection or preliminary 

drafts of the neutral) and the neutral does not circulate the notes to anyone they are not 

federal records (36 C.F.R. 1222.34(c)). If the notes appear to be formal, e.g., as a 

specific settlement proposal/options, or are given to any person, including another neutral 

or the parties, then the neutral’s notes are likely to be federal records. 

Q2: Are documents given to the internal neutral by the parties federal records?

A2: Documents received by the neutral during the course of the dispute resolution 

proceeding are not federal records unless they are maintained by the neutral after the 

conclusion of the dispute resolution proceeding. 

Q3: Do the above answers change if the neutral is an external neutral?

A3: Yes, the requirements of the Federal Records Act generally apply only to records 

made or given to federal employees (44 U.S.C. § 3301). Records received by or notes 

created by the external neutral are not federal records. 

However, occasionally, some contracts pursuant to which the neutral is hired, or an 

agreement signed by a volunteer, may contain language providing that documents created 

by a contractor are agency or federal records. In these circumstances, the Federal 

Records Act would apply in the manner described in A1 & A2, above. An ADR program 

administrator should consider reviewing such contracts to ensure that an external 

neutral’s notes and other products are not considered agency records. 
40

Q4: How can an ADR program administrator ensure that documents are 

maintained in an appropriate manner under the Federal Records Act? 

A4: There are a variety of options available to an ADR program administrator for 

document maintenance that are also consistent with the requirements of the Federal 

Records Act. An ADR program administrator may require neutrals to submit all of their 

case files to the ADR program administrator’s office, to be maintained in a separate and 

secure file area. An ADR program administrator would be required to maintain these 

case files as sealed. However, an ADR program administrator would be prohibited from 

reading these files (i.e., not have “access” to them), with the exception of case files for 

cases on which the ADR program administrator was a neutral. Alternatively, an ADR 

program administrator might require each neutral to maintain case files in a secure and 

separate area in each neutral’s office. Overall, the first option may be preferable, because 

it is easier to ensure restricted access to confidential federal records in one central area. 

However, if neutrals are off site and are disbursed in many different locations, it may be 

more practicable to have each neutral maintain her/his own case files in secure areas with 

restricted access. 

Q5: Are agreements to mediate and settlement agreements federal records?

A5: Yes, because these agreements are entered by federal employees, they are federal 

records. However, they are not confidential under the ADR Act. 

Q6: Are duplicate copies of materials or personal calendars of ADR program staff 

federal records? 

A6: No. 36 C.F.R. § 1222.34(f)(2) states that duplicate copies made only for 

convenience are not federal records. However, they may be confidential under the ADR 

Act. 

Q7: Are intake case logs and tracking information federal records? 

A7: Yes. To the extent that such documents can identify a particular dispute and reveal 

information protected by the ADR Act, they are confidential under the ADR Act. It is 

suggested that an ADR program administrator follow the practices suggested in A9, 

below. 

Q8: What advice can an ADR program administrator provide neutrals to ensure 

that the neutrals’ documents do not become federal records? 

A8: An ADR program administrator may advise internal neutrals to take only rough 

notes, and to keep such notes only to themselves. The neutrals should be advised to 

avoid circulating notes to the parties or other neutrals, unless the neutral deems it 

necessary. Bear in mind, however, that the more the notes appear to be formal or a 

detailed explanation of the dispute resolution proceeding and discussions, the more likely 

they might be deemed federal records. 
41

If an individual neutral believes that some notes may be useful to the parties, e.g., an 

outline of settlement options, and wants to circulate them to the parties, then the neutral 

may need to retain these notes as federal records and follow some of the 

recommendations in A9, below. 

Q9: How can an ADR program administrator protect the confidentiality of federal 

records as ADR program case logs, a neutral’s formal notes or notes which are 

circulated? 

A9: An ADR program administrator should consider taking the following actions: 

• establish procedures which strictly limit the number of authorized personnel who 

have access to these documents, such that:

o neutrals involved in the resolution of a particular dispute would have 

access to confidential federal records (e.g., case files, notes, etc.) relating 

to that dispute, and

o ADR program administrators who perform only ministerial tasks in 

support of the program should not have access to those records;

• mark these documents in large letters “ADR Act CONFIDENTIAL” and maintain 

them in a secure locked area;

• establish specific retention schedules for all protected documents:

o for confidential federal records (such as a neutral’s formal notes, an ADR 

program administrator’s notes on particular disputes, or case logs which 

contain confidential, identifying information), short retention schedules 

should be established that run up until the dispute is resolved or the dispute 

resolution proceeding is terminated. The schedules should identify the 

documents as sensitive documents under the Federal Records Act and the 

schedules should be submitted to NARA for approval (as the law requires); 

and

o for non-confidential federal records (such as case logs without identifying 

information), a longer retention schedule may be appropriate.

• talk to the agency's Privacy Act officer to determine whether your records are 

considered to be a Privacy Act system and if so, whether they fit under an existing 

agency system or require a new one to be created. See the Privacy Act, 5 U.S.C. 

552a. 
42

Q10: How should an ADR program administrator establish a records retention 

schedule? 

A10: An ADR program administrator should talk with records officials, develop a 

retention schedule, emphasize the sensitivity of documents, and follow the practices 

suggested in A9 above. The ADR program administrator should also become familiar 

with the National Archives and Records Administration General Records Schedule (see 

http://www.archives.gov/records_management/ardor/grs01.html. Number 27 refers to 

ADR files. 

Dilemma: The supervisor to whom the ADR program administrator 

reports requests to see the case files on all cases mediated 

in the last two years. 

Solution: The ADR program administrator should explain that all 

files of dispute resolution proceedings that are still open 

are in a secure file area. She/he should further explain that 

there is no access to all open files containing identifying 

information and neutrals’ notes because under the ADR 

Act, such files are confidential and may only be viewed by 

neutrals that assist in resolving the issue in controversy. 

As to case files where the case files are closed, all such 

files have been disposed of under the approved retention 

schedule. The ADR program administrator may offer to 

show the supervisor the case logs with the identifying 

information excised. 

Summary

As the ADR program administrator, have I considered: 

• Identifying a records retention official?

• Maintaining electronic or written data which are likely to be deemed federal 

records?

• Establishing and obtained approval from NARA for short retention schedules for 

confidential federal records? 

• Maintaining a secure area for federal records? 

• Marking each federal record “ADR Act Confidential”? 

• Minimizing access to confidential federal records? 
43

• Advising internal neutrals to dispose of their rough notes which have not been 

circulated to anyone? 

• Promptly disposing of all confidential federal records once the retention period 

expires? 
44

CHAPTER IV 

EVALUATION OF ADR PROGRAMS AND PROCESSES

This chapter provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality of information gathered 

in support of, and results of, ADR program or process evaluation efforts. 

General Description

ADR program evaluation is a means by which to determine whether an ADR program or 

process is meeting its goals and objectives. Evaluation results are useful in determining 

what works and what does not, and may be a critical factor in decisions regarding 

whether and how to modify or expand a program or an ADR process. An ADR program 

administrator should understand the importance of early program evaluation in ensuring 

the quality of their ADR programs and/or ADR practices. This chapter addresses two 

types of evaluations in which information is collected by an ADR program administrator 

or an outside evaluator: (1) evaluation of an entire program (covering many disputes) and 

(2) evaluation of a particular dispute resolution proceeding. 

Although the ADR Act does not protect evaluation reports or results from disclosure, 

there are some practical mechanisms that should be considered by an ADR program 

administrator to preserve the privacy of evaluation information. 

Legal Analysis

The ADR Act recognizes that research and education concerning use of alternative 

dispute resolution techniques are important to the continued development of the field. 

5 U.S.C. § 574(h) provides that the gathering of information for research or educational 

purposes shall not be prevented so long as the parties and the specific issues in 

controversy are not identifiable. However, there are no legal guarantees that such 

information relating to federal agency ADR processes, once collected, will not be subject 

to disclosure. Therefore, any evaluation program must be aware of these risks and take 

steps to minimize the possibility of inappropriate disclosures. 

Information held by an evaluator is not protected from disclosure by the confidentiality 

provisions of the ADR Act. Only information held by a neutral or parties is protected 

from disclosure under the ADR Act (5 U.S.C. § 574(a), (b)). 

It is not a violation of the ADR Act’s confidentiality provisions for a party or a neutral to 

disclose protected dispute resolution communications to an evaluator. Section 574(h) 

permits parties and neutrals to answer an evaluator’s questions, participate in an 

evaluation and disclose dispute resolution communications, so long as the evaluation is 

conducted in a way that the parties and specific issues in controversy are not identifiable. 
45

Confidentiality Issues Raised While Designing and Conducting Evaluations, and 

Reporting Evaluation Results

Q1: How can an ADR program administrator minimize the risk of dispute 

resolution communications being disclosed inappropriately or unnecessarily by the 

parties or neutrals when participating in an evaluation? 

A1: The ADR Act permits disclosures of dispute resolution communications by a neutral 

or party for purposes of evaluation. Once such disclosures are made, however, the 

information held by the evaluator is not protected under the ADR Act. Consequently, an 

ADR program administrator should consider advising neutrals and parties that they: 

• may participate in an evaluation; 

• should request information from the evaluator to ensure that collected information 

will be maintained in a way that the parties and specific issues in controversy are 

not identifiable; 

• should provide only information necessary for the evaluation; and 

• should avoid providing information that reveals intimate information presented by 

session participants. 

An ADR program administrator should consider including in the information packet 

given to participants in the program notice that there may be evaluations of the dispute 

resolution program and explain the benefits the program will derive from the feedback. 

An ADR program administrator should also request participants’ and neutrals’ consent to 

participate in future evaluations. 

Q2: How can an ADR program administrator ensure that data obtained during an 

evaluation is appropriately handled and maintained, because the ADR Act does not 

protect information collected by the evaluator? 

A2: ADR program evaluation will inevitably include some individual, case-specific 

information. To ensure that ADR program data is appropriately handled and maintained, 

an ADR program administrator should consider taking the following actions: 

• collect only the data necessary; 

• code intake information to ensure anonymity; 

• code individual case names; 

• avoid using substantive, case-specific information in reports or surveys; 

• separate case-sensitive and non-case-sensitive information; 
46

• aggregate evaluation data; and 

• keep case-sensitive information in a locked file and/or create a “firewall” 

protection. 

Q3: Do other statutes, like FOIA, protect evaluation information from disclosure?

A3: Evaluation information may be subject to disclosure in response to a FOIA request. 

The best practices for minimizing the inappropriate disclosure of information obtained 

through evaluation are therefore to follow the recommendations in A2, above. At the 

same time, an ADR program administrator will also need to balance the best and 

effective practices for evaluation of dispute resolution programs with the risks of 

potential required disclosures. 

Q4: Will hiring an outside evaluator minimize the risk of disclosure of evaluation 

information under FOIA? 

A4: Information collected by an outside evaluator, which is not included in an evaluation 

report or other document given to a federal agency, would be protected from disclosures 

because FOIA applies only to records held by a federal agency. However, the final 

products, such as evaluation reports or evaluation documents given to the federal agency, 

would likely be subject to disclosure unless an exemption applied. Thus, because most 

evaluation reports are typically going to be given to the federal agency that has contracted 

with the outside evaluator, use of an outside evaluator will not prevent the potential 

disclosure of such reports under FOIA. 

Summary

As the ADR program administrator conducting evaluations, have I considered: 

• Including protections for evaluation information throughout my program? 

• Collecting only the data I need? 

• Ensuring anonymity of participants? 

• Ensuring anonymity of cases? 

• Filing sensitive data separately from other files? 

• Protecting sensitive data through “firewalls”? 

• Reporting obtained information only in the aggregate? 

• Notifying and obtaining consent of participants and neutrals to participate in 

evaluations? 
47

CHAPTER V 

REQUESTS FOR DISCLOSURE OF 

DISPUTE RESOLUTION COMMUNICATIONS 

This chapter provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality when requests for the 

release or disclosure of dispute resolution communications are received. 

General Description

Requests for disclosure of protected dispute resolution communications come from two 

primary sources: (1) persons without specific statutory authority to obtain information, 

and (2) persons with statutory authority to obtain information. These requests may be 

directed to the neutral or a party, as well as an ADR program administrator. 

Release, or disclosure, of any information or communication protected from disclosure 

by the ADR Act is a sensitive subject. The ADR Act recognizes the unique nature of 

federal ADR processes and attempts to balance the participants’ need for confidentiality 

with the requirements of an open government. The ADR Act also distinguishes the 

confidentiality obligations of private neutrals and federal neutrals mediating for their own 

agency or as part of a sharing neutrals program. Requests for disclosure of information 

protected by the ADR Act are inevitable. An ADR program administrator plays a pivotal 

role in ensuring that requests are addressed promptly and appropriately, and that 

decisions to grant or deny a request are made according to the requirements of the ADR 

Act and agency policy and procedures. 

Legal Analysis

Under the ADR Act, a neutral has a high obligation regarding confidentiality, and may 

not voluntarily disclose, or be compelled to disclose, information protected by the ADR 

Act unless authorized by a statutory exception (5 U.S.C. § 574(a)). Whenever a neutral 

receives a request for disclosure of a dispute resolution communication, the parties must 

be notified and given an opportunity to object. A court may order disclosure by a neutral 

only after carefully balancing the need for disclosure against the damage to the integrity 

of dispute resolution processes in general, using criteria stated in the ADR Act. 

While parties also have an obligation of confidentiality, it is less than that of a neutral. 

There are a number of exceptions to the requirement that parties may not voluntarily 

disclose, or be compelled to disclose, information protected by the ADR Act. Unless 

they have agreed otherwise, via a contractual confidentiality agreement, parties may 

disclose what they and other parties said during a “joint session.” (See the Legal 

Analysis section of Chapter II, Confidentiality Agreement.) They may also disclose their 

own statements and information. In general, they may not disclose communications 

generated by a neutral. A court may order a party to disclose information protected by 

the ADR Act, but the court must first apply a balancing test. 
48

The Inspector General Act of 1978 (“IG Act”) does not directly address access to 

information concerning dispute resolution proceedings protected by the ADR Act. 

Rather, the IG Act sets out the general authority of Inspectors General to obtain 

information to carry out their responsibilities. Under the IG Act, each Inspector General 

is authorized “to have access to all records, reports, audits, reviews, documents, papers, 

recommendations, or other material available * * *” to the agency. (5 U.S.C. Appx. § 

6(a)(1)). 

The Freedom of Information Act does not directly address requests for information 

concerning dispute resolution proceedings protected by the ADR Act. However, FOIA 

provides that an agency is not required to provide requested information if the subject 

matter of a request is specifically exempted from disclosure by statute (5 U.S.C. § 

552(b)(3)(A) and (B)). The ADR Act specifically exempts certain dispute resolution 

communications between a neutral and a party from disclosure under Section 552(b)(3) 

of FOIA (5 U.S.C. § 574(j)). Note that information obtainable through a FOIA request is 

limited to agency records. (See Chapter III, Agency Record-Keeping, for additional 

information on what constitutes “federal records.”) 

As the Federal ADR Council acknowledged in the 2000 ADR Guidance, there is tension 

between the ADR Act and other laws or regulations that authorize access to certain 

classes of information. The issues of statutory interpretation between these differing 

authorities have not yet been considered in an appropriate forum. This Guide follows the 

2000 ADR Guidance's endorsement of a cooperative approach where the ADR program 

and Federal requesting entities establish good working relationships such that disputes 

over demands for disclosure of confidential communications can be minimized. The 

2005 ABA Guidance discusses this topic in some detail. 

Confidentiality Issues Raised When Disclosure of Protected Dispute Resolution 

Communications is Requested

I. REQUESTS FOR DISCLOSURE OF INFORMATION PROTECTED BY THE ADR 

ACT BY PERSONS WHO DO NOT HAVE STATUTORY AUTHORITY TO OBTAIN 

INFORMATION 

This Section addresses requests for disclosure of information regarding a dispute 

resolution proceeding by people who have no statutory authority to require disclosure of 

information. Such persons may include agency officials, representatives of other federal, 

state, tribal or local governmental organizations, private parties, or agency employee 

relations, labor relations and workplace violence staff. While there are no statistics 

available on the number of these informal requests for information protected by the ADR 

Act or who makes them, many ADR program administrators report that informal requests 

are common. These requests come in many forms. They include everything from a 

casual question (e.g., “I heard there was a mediation today. How did it go?”), to more 

pointed requests by supervisors or other interested non-participants (e.g., to be “briefed 

on the mediation session”). 
49

Q1: Who is responsible for deciding how, when, and if information protected by the 

ADR Act should or must be disclosed? 

A1: The provisions of the ADR Act focus on the neutral’s responsibilities for responding 

to requests for disclosure. This “just say no” policy to casual requests for information 

applies to all neutrals – private or federal. If the request is made in writing or some other 

formal manner, the neutral must notify the parties and give them an opportunity to object 

to disclosure. When a neutral receives an informal or casual request for disclosure, the 

neutral must decline to disclose information protected by the ADR Act, unless the parties 

have waived confidentiality protection (See Chapter II, Confidentiality Agreements), or 

the release is authorized by a statutory exception. 

The ADR Act imposes no obligation for a party to inform the neutral or other parties 

when the party receives a disclosure request. However, a party must consider the ADR 

Act’s requirements when making the decision to disclose. 

The role of an ADR program administrator in responding to disclosure requests is not 

addressed in the ADR Act. However, it is clear that while neutrals have the statutory 

responsibility to respond to disclosure requests, an ADR program administrator often will 

have a practical role. This is most likely to be the case when the neutral was obtained 

from a sharing neutrals program or is a federal employee in the same agency. In such 

cases, an ADR program administrator may need to provide the neutral with contact 

information to notify the parties and facilitate any decision. 

Q2: What is an ADR program administrator’s role when receiving a request for 

disclosure directed to the neutral or a party? 

A2: If an ADR program administrator receives a request for information that is directed 

to a neutral or party, she/he should immediately forward the request to the appropriate 

person along with an offer to provide assistance. This assistance can include contact 

information for other parties and/or the neutral, a review of the program files for copies 

of non-confidential documents such as the Agreement to Mediate and the Settlement 

Agreement, and any appropriate consultation resources. 

Q3: Are there any circumstances under which an ADR program administrator 

could or should defend a neutral that has declined a request to disclose information? 

A3: Under the provisions of the ADR Act, parties are required to be notified of a request 

to a neutral for disclosure of information and should be given an opportunity to defend 

the neutral to avoid disclosure of protected information. There is nothing in the ADR Act 

that addresses an ADR program administrator’s obligation or ability to defend a neutral. 

So, it would seem that an ADR program administrator could undertake a defense of the 

neutral on behalf of the agency in order to protect the integrity of a particular session or 

of the agency’s program, in general. 
50

Q4: What steps can an ADR program administrator take to ensure prompt, 

appropriate responses to requests for disclosure from requestors without statutory 

authority to obtain information? 

A4: There are a number of steps an ADR program administrator can consider taking to 

limit the possibility that information protected by the ADR Act will be disclosed 

inadvertently or in violation of the ADR Act. Those steps include: 

• establishing a general policy of non-disclosure; 

• identifying which records maintained by the ADR program are not protected from 

disclosure; 

• treating any information concerning a dispute resolution proceeding not protected 

by the ADR Act in the same manner as other communications that may be 

restricted as private or internal agency communications under agency policies or 

practices; 

• establishing a review process that identifies any agreement of the parties that 

provides for greater or lesser confidentiality protection, in order to ensure that 

disclosure requests are decided appropriately as they relate to these agreements; 

and 

• establishing policies and procedures for processing requests for disclosure and for 

determining when and how to disclose information protected by the ADR Act. 

Q5: How does an agreement of parties for more confidentiality protection than is 

available under the ADR Act affect the parties’ responses to requests for disclosure? 

A5: Parties may agree in writing to more confidentiality protection than is available 

under the ADR Act. (However, see the Legal Analysis section of Chapter II, 

Confidentiality Agreements). Very often this additional protection relates to 

communications made during joint sessions, which are not protected under the ADR Act. 

Parties should consider and respond to disclosure requests in accordance with the 

requirements of the ADR Act and of their written agreement. 

 

Q6: May any person, including a federal agency employee or management official, 

who is not a neutral or a party to the dispute, request and obtain disclosure of 

information protected by the ADR Act? 

A6: In general, a person without statutory authority to obtain information (“non-statutory 

requestor”) may not obtain information that is protected by the ADR Act. However, nonstatutory requestors may request and obtain any information that does not meet the ADR 

Act’s definition of a dispute resolution communication. These may include written 

agreements to enter into ADR, written settlement agreements, statements made by a party 

in a “joint session,” where all parties are present, and documents created by a party and 
51

made available to all parties. While some agencies restrict access to the contents of 

settlement agreements on a need-to-know basis, the confidentiality provisions of the 

ADR Act do not prevent disclosure of a final written settlement agreement that was the 

result of a dispute resolution proceeding. 

There are a limited number of situations where non-statutory requestors may obtain 

disclosure of information protected by the ADR Act. These include a request by an 

agency decision-maker for information necessary to make a reasoned decision regarding 

the settlement of a mediated dispute, and a request by an agency supervisor for 

information necessary to successfully implement a settlement agreement. (See Chapter I, 

Dispute Resolution Proceedings: D. Oversight Responsibilities After the Dispute 

Resolution Session.) 

Dilemma: An agency employee is aware that a mediation has 

concluded and asks the ADR program administrator, “How 

did it go?” How should the program administrator 

respond to this personal request for information? 

Solution: The ADR program administrator should not reveal 

anything about the session. The ADR program 

administrator would be well advised to not even 

acknowledge the mediation session. Rather, the ADR 

program administrator should simply decline to comment 

in any way. 

Dilemma: The ADR program administrator’s supervisor asks “to be 

briefed” about a particular mediation session. What may 

the ADR program administrator disclose? 

Solution: The ADR program administrator may note that a 

proceeding occurred and, if a settlement was reached, 

discuss the terms of the settlement with the supervisor. 

(The confidentiality provisions of the ADR Act do not cover 

a final written settlement agreement.) If the ADR program 

administrator has knowledge of what was disclosed during 

the dispute resolution session, whether by actively 

participating in the session or by exercising supervisory 

oversight of the ADR program, the ADR program 

administrator may not disclose that knowledge. The ADR 

program administrator’s supervisor is unlikely to be a 

neutral within the meaning of the ADR Act and cannot be 

given information about dispute resolution communications 

that may have been shared with the ADR program 

administrator. 
52

Q7: May a party disclose a dispute resolution communication that is relevant to 

resolving a dispute over the existence or meaning of a settlement arrived at through 

a dispute resolution proceeding? May an ADR program administrator disclose the 

communication? 

A7: Yes, there is a specific exception for disclosure of such communications by a party 

(5 U.S.C. § 574(b)(6)). Even if an ADR program administrator served as a neutral in the 

particular mediation process, she/he may not disclose the information (5 U.S.C. § 

574(a)). 

II. REQUESTS FOR DISCLOSURE OF INFORMATION PROTECTED BY THE ADR 

ACT BY PERSONS OR FEDERAL ENTITIES WHO DO HAVE STATUTORY 

AUTHORITY TO OBTAIN INFORMATION 

This Section addresses requests for disclosure of information regarding a dispute 

resolution proceeding by people with statutory authority to obtain information from a 

federal agency, e.g., an agency Office of the Inspector General, Office of Special 

Counsel, and other governmental agencies. Such requests appear to be much less 

common than the informal requests described in the last Section. Experience – and 

anecdotal reports – suggests that few ADR program administrators have ever received a 

request for information protected by the ADR Act based on statutory authority, and it is 

anticipated that formal requests will continue to be rare. However, any such request is 

likely to involve important legal and program issues, and the results will affect all federal 

ADR efforts. Therefore, it is essential for program administrators to be aware of the 

tension that exists between the ADR Act and other statutory authorities and to prepare for 

potential requests. This Section addresses only issues raised by requests for disclosure 

of information held by an ADR program administrator, either in their role as a neutral or 

because the information is in files maintained by the ADR program. 

Q1: A number of federal entities have statutory authority to obtain information 

concerning federal agency activities. Which statutes are the most likely to generate 

requests of information protected by the ADR Act?

A1: The following is a list of federal statutes most likely to generate requests for 

information protected by the ADR Act: 

• Inspector General Act (5 U.S.C. Appx.); 

• Whistle Blower Protection Act (5 U.S.C. § 1212(b)(2)); 

• Freedom of Information Act; and 

• Federal Labor Relations Act (Chapter 8 CSRA). 
53

This list is not comprehensive and an ADR program administrator may want to work with 

their General Counsel office to develop a more exhaustive list applicable to their 

program. In addition, there are other statutes that may be read to impose an affirmative 

obligation on federal employees to disclose certain classes of information. These include, 

but are not limited to, 18 U.S.C. § 4 (knowledge relating to the commission of a felony) 

and 28 U.S.C. § 535 (investigation of crimes involving government officers and 

employees). 

 

Q2: How should an ADR program administrator handle requests from the 

Inspector General or from other persons or entities with statutory authority to 

obtain information? 

A2: An ADR program administrator is in a position to be approached for disclosure of 

information protected by the ADR Act. Some of these requests will be from persons or 

entities that have statutory authority to obtain information. Some of the requestors may 

believe that an ADR program administrator must disclose the information despite the 

confidentiality provisions of the ADR Act, and despite any alternative protections that 

have been agreed upon by the parties. Therefore, it is important for an ADR program 

administrator to be prepared to decide how and when to allow disclosure of information 

protected by the ADR Act. 

There are three basic steps an ADR program administrator can take to prepare for any 

disclosure request: 

1. educate and inform him/herself about the persons and entities with statutory 

authority to make requests and their missions, duties and responsibilities; 

2. develop policies and procedures for processing and responding to disclosure 

requests; and 

3. develop a collaborative, professional working relationship with the agency 

Inspector General and other persons or entities that may need to make disclosure 

requests. 

An agency’s General Counsel office is a good source of information about potential 

requestors, their statutes, their missions and any legal questions an ADR program 

administrator may have as he/she develops policies and procedures. 

Q3: How comprehensive should the ADR program policies and procedures be 

concerning responding to requests of information from persons with statutory 

authority? 

A3: The policies and procedures should be applicable to all potential statutorily based 

requests for disclosure of information protected by the ADR Act. The purpose of the 

policies and procedures should include: 
54

• protecting the confidentiality of the dispute resolution proceedings; 

• providing a means for protecting the competing interests of dispute resolution 

proceeding participants and the requestors; and 

• establishing consistent, reliable processing and responses to requests. 

Q4: What should be included in an ADR program’s policies and procedures 

regarding protecting, and responding to requests for disclosure of, information 

protected by the ADR Act? 

A4: Written policies and procedures, whether short and simple or long and complicated, 

provide a necessary measure of predictability and reliability to an agency’s consideration 

and response to requests for disclosure. The following checklist is intended to help an 

ADR program administrator develop policies and procedures that are designed to avoid 

or minimize potential “access request” disputes and that are appropriate for their own 

agency. 

1. Central processing. All requests for disclosure should be logged in and retained 

in a central location. This ensures that no requests are overlooked, and it provides 

a convenient method of tracking the request throughout the decision-making and 

response process. 

2. Decision maker. One individual whose rank and stature within the agency allow 

him/her to act independently should have delegated authority to decide whether or 

not the agency should release information protected by the ADR Act. Note that 

this person cannot make decisions requiring external neutrals to disclose 

communications protected by the ADR Act. 

3. Notice procedures. Anyone receiving a request for disclosure should immediately 

send the request to central processing. Central processing should notify each 

party, neutral, and other participants of the request. 

4. Criteria for analyzing the request. These criteria should include, but not be 

limited to: 

• the source and identity of the requestor; 

• the statutory basis, if any, for the request; 

• the reason or purpose of the request; 

• whether some, or all, of the requested information meets the ADR Act 

criteria for confidentiality protection; 
55

• whether some, or all, of the requested information can be obtained from 

other sources; 

• whether some, or all, of the parties object to release of the information; 

• whether some, or all, of the information meets the ADR Act criteria for 

releasing information protected by the ADR Act; 

• whether some, or all, of the information is protected by a contract between 

the parties; 

• whether some, or all, of the information is protected by a statute or rule 

other than the ADR Act; and 

• whether some, or all, of the information is protected by agency policy or 

regulation. 

5. Standard response. A standard format for responding to requests should include: 

• a clear statement of whether the information will, or will not, be disclosed; 

• a consent form signed by the parties and/or neutral, if information is being 

disclosed; and 

• an official to contact if there are questions or objections. 

6. Record keeping and reporting. Each agency should keep careful records of every 

request and the agency’s response, for accurate reporting purposes. 

Q5: Does a request from an agency Inspector General raise unique confidentiality 

issues? 

A5: Yes, there is a tension between the duties and responsibilities of an Inspector 

General under the IG Act (5 U.S.C. App. §§ 2 and 3), and the confidentiality provisions 

of the ADR Act. The ADR Act prohibits both neutrals and parties from disclosing 

information protected by the ADR Act unless it falls within one of the enumerated 

exceptions, while the IG Act authorizes the Inspector General to have access to 

documents relating to an agency’s programs and operations. There is no easy resolution 

to this conflict. An ADR program administrator should educate themselves about the 

issue and make every attempt to establish good working relationships with their agency 

Inspector General to prevent, or at least minimize, any potential conflicts. 
56

Q6: Why would the Inspector General need to request information protected by the 

ADR Act? 

A6: Inspectors General are charged with two general duties with respect to agency 

operations: (1) to audit, and (2) to investigate an agency’s programs and operations (IG 

Act, § 2). To carry out these responsibilities, an Inspector General may do the following. 

• Investigate allegations of criminal wrongdoing and administrative misconduct by 

agency employees. This includes allegations of criminal activity by non-agency 

individuals and entities that has a direct impact on the agency. 

• Inform the head of the agency and Congress of problems and deficiencies in the 

agency’s programs. This includes a semi-annual report to Congress. 

• Audit and inspect agency programs and operations. This includes the activities of 

outside entities doing business with, or obtaining any benefit from, the agency. 

Q7: Is the form, and practical effect, of a request from the Inspector General 

different depending upon whether the neutral or party is a federal employee? 

A7: Yes, if the neutral or party is a federal employee, the Inspector General can request 

the information from the employee’s agency but cannot subpoena it. If the neutral or 

party is a federal employee of another federal agency (as when the neutral was obtained 

from a federal sharing neutrals program), the Inspector General must request the 

assistance of the other agency in obtaining the information from the employee. If the 

neutral or party is a private person, the Inspector General can use its administrative 

subpoena authority to obtain any written materials in the person’s possession. If the 

private person fails to respond or produce the information, the Inspector General can have 

the subpoena enforced by a federal district court. 

It is important to note here that most federal agencies have policies requiring employees 

to report misconduct and to cooperate with the Inspector General when asked for 

information related to any official audit, investigation or other review. 

Q8: Should an ADR program administrator consider entering into an agreement 

with the Inspector General and, if so, what should it contain?

A8: Yes, effectively coordinating and cooperating with the Inspector General in your 

agency (or others making requests pursuant to a statute) may help to prevent or deescalate disputes concerning formal requests for information protected by the ADR Act. 

Therefore, in addition to developing policies and procedures for the ADR program, an 

ADR program administrator may wish to enter into an agreement with the Inspector 

General on procedures for initiating requests and the ADR program’s response. These 

procedures should be made a part of the agency’s ADR policy, and should refer to the 

agency’s other policies for reporting to, and cooperating with, the Inspector General. 
57

An agreement or memorandum of understanding should address the following issues: 

• description of the problem or issue, including the competing interests and statutes, 

the lack of legal precedents, why the Inspector General might need access to 

information protected by the ADR Act and the significance of confidentiality in 

ADR processes; 

• recitation of the purpose of the agreement; 

• applicable statutes (e.g., ADR Act and IG Act); 

• definitions of ADR and Inspector General terminology (e.g., information 

protected by the ADR Act and special agent); 

• criteria for determining when disclosure is appropriate or necessary; 

• description of access needs for audit or evaluation purposes; 

• description of access needs for investigative purposes; 

• agreement to seek information from other sources before requesting disclosure 

from the neutral or parties; 

• procedures for requesting information; 

• procedures for processing requests and independent, fully informed decision 

making; and 

• procedures for addressing agency refusals to disclose. 

III. REQUESTS FOR DISCLOSURE OF INFORMATION PROTECTED BY THE ADR 

ACT PRESENTED IN THE FORM OF A SUBPOENA OR COURT ORDER 

Q1: Under what circumstances may a federal court order disclosure of 

communications protected by the ADR Act? 

A1: A court may order disclosure of information protected by the ADR Act only when it 

is necessary to: (1) prevent a manifest injustice; (2) help establish a violation of law; or 

(3) prevent harm to the public health and safety. The court must determine that the need 

for the testimony or disclosure is so great in the particular case that it outweighs “the 

integrity of dispute resolution proceedings in general by reducing the confidence of 

parties in future cases that their communications will remain confidential” (5 U.S.C. § 

574(a)(4) & (b)(5)). 
58

Q2: Does a court order to disclose information protected by the ADR Act apply to 

both the neutral and a party? 

A2: Yes, either the neutral and/or a party may be ordered to disclose the communication, 

if it meets the criteria for disclosure outlined in A1, above. 

Q3: If information protected by the ADR Act has been improperly disclosed, can a 

court allow the improper disclosure to be admitted into testimony in a court or 

other legal proceeding? 

A3: No, information protected by the ADR Act that is improperly disclosed is not 

admissible in a proceeding related to the issues in controversy. However, it may be 

admissible in a proceeding that does not cover the same issues. 

IV. REQUESTS FOR DISCLOSURE OF INFORMATION PROTECTED BY THE ADR 

ACT PRESENTED IN THE FORM OF A FOIA REQUEST 

Q1: Is an ADR program administrator who receives a FOIA request for documents 

and oral communications created or made by parties during a particular dispute 

resolution proceeding required to disclose the information? 

A1: No, communications during a dispute resolution proceeding that are protected by the 

ADR Act are specifically exempted from disclosure under Section 552(b)(3) of FOIA. 

An ADR program administrator should not disclose any information protected by the 

ADR Act. 

Oral communications between and among the neutral and the parties are not covered, 

because FOIA only applies to federal records. 

An ADR program administrator can take steps to facilitate review of documents for 

FOIA requests and to assist in decision-making about disclosure. 

Q2: If parties have agreed to greater confidentiality protections than is available 

under the ADR Act, are communications protected solely by their agreement 

subject to FOIA?

A2: Yes, parties cannot contract for more protection from FOIA requests than the ADR 

Act provides (5 U.S.C. § 574(d) & (j)). 
59

Summary

As the ADR program administrator, have I considered: 

• Establishing a general policy of non-disclosure? 

• Establishing policies and procedures for processing disclosure requests? 

• Establishing policies and procedures for determining if, when, and how to 

disclose information protected by the ADR Act? 

• Educating myself about the federal statutes and federal entities most likely to 

generate disclosure requests? 

• Developing a collaborative, professional working relationship with the agency 

Inspector General and other persons or entities that may need to make disclosure 

requests? 

• Entering into an agreement with the agency Inspector General concerning 

disclosure requests? 

• Educating myself about administrative and court orders and developing policies 

and procedures for responding to a subpoena or other order? 

• Educating myself about FOIA and developing policies and procedures for 

responding to FOIA requests? 
60

CHAPTER VI 

NON-PARTY PARTICIPANTS IN THE DISPUTE RESOLUTION SESSION: 

SPOUSES, FAMILY MEMBERS, FRIENDS, AND UNION REPRESENTATIVES 

This chapter provides advice for ways ADR program administrators can establish 

procedures and practices to maintain appropriate confidentiality when non-party 

participants are present at the dispute resolution session. 

General Description

Typically, the persons present at the dispute resolution session are the parties, the neutral, 

and any personal representatives of the parties, such as an attorney. On occasion, parties 

may wish to bring other individuals with them to the dispute resolution session. Some 

may want their spouses, a friend, or co-worker to be there. Resource persons or 

observers may also be present at the dispute resolution session. Furthermore, agency 

employees who belong to the union (or collective bargaining unit) may also be present at 

the dispute resolution session. A person who belongs to the union may come just as a 

friend, or she/he may be the personal representative of the party. The union member may 

also be an employee of the union, part of the union’s management staff, or a shop 

steward. In the latter capacities, the person may be present on behalf of the union as a 

collective bargaining unit, not on behalf of the party. Alternatively, the union member 

may come both on behalf of the union and on behalf of the party. An ADR program 

administrator should seriously consider the consequences of the presence of non-party 

participants in a dispute resolution proceeding. 

Legal Analysis

The ADR Act defines a party to a dispute resolution proceeding as an individual who is 

named as a party to a federal proceeding or an individual who is significantly affected by 

the decision of a federal agency who participates in a proceeding without named parties. 

Other individuals may participate in a dispute resolution proceeding as a formal 

representative of a party, at the party’s request, such as an attorney or union official. The 

ADR Act’s confidentiality provisions specifically apply to parties and their formal 

representatives. Any other individual, who is not serving as a neutral, present in a dispute 

resolution proceeding is considered a “non-party participant.” 

Non-party participants who may be present in a dispute resolution proceeding are not 

subject to the ADR Act’s confidentiality provisions. Persons like co-workers and friends 

who accompany a party to a mediation, either for moral support or other personal 

reasons, are not covered by the ADR Act’s confidentiality provisions. However, there 

are options to protect confidentiality or minimize the likelihood of disclosures by nonparty participants. 
61

Confidentiality Issues Raised for Non-Party Participants at the Dispute Resolution 

Session

Q1: If an employee’s best friend is at the dispute resolution session for moral 

support, is the best friend prohibited from disclosing dispute resolution 

communications made by the neutral, or other parties in private caucuses? 

A1: No, the best friend is free to disclose anything she learns, because the ADR Act does 

not cover her, unless a confidentiality agreement applies. 

Q2: What categories of persons are not covered by the ADR Act’s confidentiality 

provisions? 

A2: Anyone who is not a party to the dispute or anyone who is not a party’s personal 

representative is not covered by the ADR Act’s confidentiality provisions. For example, 

friends, resource persons, persons representing a union, observers, co-workers, family 

members and spouses who attend the mediation are not covered. 

Q3: What can an ADR program administrator do to protect the confidentiality of 

dispute resolution communications when a non-party participant is present in a 

dispute resolution session? 

A3: An ADR program administrator should consider the following actions: 

• require that non-party participants sign a confidentiality agreement (See Chapter 

II, Confidentiality Agreements); 

• train all neutrals on the importance of having all non-party participants sign an 

established, separate confidentiality agreement; and 

• train all neutrals on educating the participants in the session on their 

confidentiality obligations. 

The participation of resource persons may be arranged ahead of time or may be initiated 

during the session. These individuals may be experts in a substantive area or they may be 

agency employees with expertise in an area that pertains to the dispute or to the potential 

resolution (e.g., a pension/benefit expert, if retirement is expected to arise as an issue or 

option). 

Under certain circumstances, non-party participants may be considered “neutrals” under 

the ADR Act for purposes of the confidentiality provisions. To be considered a neutral, 

they must: 

• either be brought into the proceedings by the session neutral and acceptable to the 

parties or be brought into the proceedings by the parties jointly; and 
62

• meet the other statutory requirements for “neutral.” (See Chapter 1, Dispute 

Resolution Proceedings: A. Overview.) 

If only one party brings the expert or resource person into the session, the person is not a 

neutral under the ADR Act. 

An ADR program administrator should brief resource persons, whether they are 

“neutrals” or simply non-party participants, on confidentiality provisions prior to their 

participation in the ADR process. If they are to participate in the session, they should be 

encouraged to sign the confidentiality agreement. If they are brought in mid-session and 

are only answering questions and not hearing confidential dispute resolution 

communications, signing the confidentiality agreement may not be necessary. 

Q4: Are union members who are present on behalf of their collective bargaining 

units, and not solely as a representative of the party, covered by the confidentiality 

provisions of the ADR Act? 

A4: No, union members present on behalf of their collective bargaining units, and not 

solely as a representative of the party, are not covered by the ADR Act confidentiality 

provisions, and are free to disclose any information learned at the session, unless they 

signed a confidentiality agreement restricting their disclosure. 

Q5: An ADR program administrator and the session neutral may, due to legal 

requirements, have no authority to exclude union members who are representing a 

bargaining unit. When this happens, what steps can an ADR program 

administrator take to maximize the confidentiality of dispute resolution 

communications while such a union member is at a dispute resolution session? 

A5: In general, an ADR program administrator should be proactive with respect to the 

role of unions participating in dispute resolution proceedings and coordinate with the 

agency’s labor relations office or General Counsel office on these efforts. 

An ADR program administrator should consider the following actions: 

• establish with each union (through mediation or negotiation) a general protocol 

for union participation in dispute resolution proceedings; and 

• urge participating union members representing a bargaining unit to sign the 

standard confidentiality agreement. 

If the union representative is unable to sign the standard confidentiality agreement, the 

session neutral should negotiate an alternative confidentiality agreement that 

approximates as closely as possible the ADR Act’s provisions. The neutral should also 

make sure that the parties understand the potential consequences of the union 

representative’s inability to sign the standard confidentiality agreement. Alternatively, if 
63

signing a standard or alternative confidentiality agreement is not possible, the session 

neutral, with the assistance of an ADR program administrator as necessary, should define 

on a case-by-case basis a union participation protocol. 

Considerations for a protocol might include: 

• If union representatives feel that, as bargaining unit representatives, they have a 

duty to report on certain information occurring at the dispute resolution session, 

the protocol could permit limited disclosure by the union representative to: (1) 

bargaining unit members who have a need to know such information, and (2) 

information that is only relevant to the union member’s duties of fair 

representation of the bargaining unit (e.g., seniority systems, etc.); 

• The neutral, in consultation with the parties and the union representative, may 

consider including union representatives at joint sessions and holding private 

caucuses with the employee or agency without the presence of union members. If 

the union representatives are not present at the private caucuses, the neutral may 

consider giving non-confidential updates to the union representatives as the 

outlines of a potential settlement emerge either at a subsequent joint session or in 

a separate meeting; and 

• The neutral should make sure parties understand the consequences of the union 

representatives’ inability to sign a confidentiality agreement. 

Summary

As the ADR program administrator, have I considered: 

• Establishing a standard confidentiality agreement for non-party participants? 

• Educating neutrals about the importance of requiring all non-party participants to 

sign such an agreement and of explaining the confidentiality provisions to them? 

• Ensuring that union members, who are present on behalf of a bargaining unit, sign 

the standard confidentiality agreement or an alternative one with strong 

confidentiality protections? 

• Being proactive in establishing a general protocol for union participation in 

dispute resolution proceedings or educating session neutrals about the importance 

of mediating union participation protocol on a case-by-case basis? 
64

APPENDIX 

CHAPTER SUMMARIES

Summary for Oversight Responsibilities Before the Dispute Resolution Session 

As the ADR program administrator, have I considered: 

• Deciding who is authorized to function as a neutral in my program? 

• Appropriately identifying the individual(s) as a potential neutral? 

• Identifying the neutral(s) in my program to agency staff and potential parties? 

• Educating ADR program staff, including those who engage in intake, assessment 

and convening, about the nature of their confidentiality and record keeping 

obligations? 

• Taking all necessary steps to ensure the program supports the neutral’s 

confidentiality? 

• Ensuring that the convening and assessment process is explicitly specified in 

agency documents and information as part of the ADR process for purposes of 

confidentiality? 

• Ensuring that the parties understand the role of a neutral and their responsibilities 

for confidentiality? 

• The benefits of having the parties sign a confidentiality agreement before 

substantive discussions begin? 

• Educating mediators, agency personnel, and other mediation participants, 

including resource persons, about the nature of their confidentiality obligations? 

Summary for Oversight Responsibilities During the Dispute Resolution Session 

As the ADR program administrator, have I considered: 

• Determining that the neutral is aware of, and will assist the parties in 

understanding, the scope of confidentiality protections provided by the ADR Act? 

• Ensuring that the neutral specifies to the parties what aspects of agency policy 

incorporated into a confidentiality agreement of the parties go beyond the ADR 

Act’s confidentiality protections or require the disclosure of information protected 

by the ADR Act? 
65

• Checking to see that the session neutral has reviewed the 2000 ADR Guidance 

before commencing the dispute resolution session, and understands the effect of 

any agency policy regarding confidentiality or requiring the disclosure of certain 

information? 

• Ensuring that the neutral will protect confidentiality through appropriate selection 

of session rooms, use of telephones, and the use of computers for drafting a 

resolution or settlement agreement or conveying other dispute resolution 

communications to parties? 

• Ensuring that the neutral’s opening statement states that he or she may need to 

consult with the ADR program administrator, other ADR professionals, or subject 

matter experts? 

Summary for Oversight Responsibilities After the Dispute Resolution Session 

As the ADR program administrator, have I considered: 

• Ensuring that the session neutral understands she/he generally cannot disclose 

dispute resolution communications and communications provided to the neutral in 

confidence? 

• Suggesting that session neutrals have the parties acknowledge either orally or in 

writing that the neutral may disclose information protected by the ADR Act to the 

extent necessary to obtain approval of the settlement agreement? 

• Drafting an agency policy regarding disclosure of information protected by the 

ADR Act for purposes of approval of the settlement agreement? 

Summary for Confidentiality Agreements

As the ADR program administrator, have I considered: 

• Ensuring that the parties and neutral(s) are educated about the purpose, and 

benefits of signing a confidentiality agreement? 

• If parties are considering using a written confidentiality agreement to increase 

their own confidentiality obligations, ensuring that the parties are aware of and 

have balanced the considerations noted in the Legal Analysis section above? 

• Requiring the signing of a confidentiality agreement in all appropriate disputes? 
66

• Providing parties and neutrals with a model confidentiality agreement that 

contains the following: 

o a statement of the intent of the parties and neutral(s) that the 

confidentiality provisions of the ADR Act apply to their communications; 

o an explanation of the scope and limits of the protections provided by the 

ADR Act and the ability of parties to agree to alternative protections; 

o inclusion of additional provisions, if appropriate, intended to enhance or 

change the confidentiality provisions of the ADR Act; and 

o an explanation of the impacts on confidentiality of any additional 

incorporated provisions, including relevant agency policy or guidance and 

their ability to protect communications from disclosure? 

• Retaining the original or a copy of the confidentiality agreement? 

Summary for Agency Record-Keeping

As the ADR program administrator, have I considered: 

• Identifying a records retention official?

• Maintaining electronic or written data which are likely to be deemed federal 

records?

• Establishing and obtained approval from NARA for short retention schedules for 

confidential federal records? 

• Maintaining a secure area for federal records? 

• Marking each federal record “ADR Act Confidential”? 

• Minimizing access to confidential federal records? 

• Advising internal neutrals to dispose of their rough notes which have not been 

circulated to anyone? 

• Promptly disposing of all confidential federal records once the retention period 

expires? 
67

Summary for Evaluation of ADR Programs and Processes

As the ADR program administrator conducting evaluations, have I considered: 

• Including protections for evaluation information throughout my program? 

• Collecting only the data I need? 

• Ensuring anonymity of participants? 

• Ensuring anonymity of cases? 

• Filing sensitive data separately from other files? 

• Protecting sensitive data through “firewalls”? 

• Reporting obtained information only in the aggregate? 

• Notifying and obtaining consent of participants and neutrals to participate in 

evaluations? 

Summary for Requests for Disclosure of Dispute Resolution Communications

As the ADR program administrator, have I considered: 

• Establishing a general policy of non-disclosure? 

• Establishing policies and procedures for processing disclosure requests? 

• Establishing policies and procedures for determining if, when, and how to 

disclose information protected by the ADR Act? 

• Educating myself about the federal statutes and federal entities most likely to 

generate disclosure requests? 

• Developing a collaborative, professional working relationship with the agency 

Inspector General and other persons or entities that may need to make disclosure 

requests? 

• Entering into an agreement with the agency Inspector General concerning 

disclosure requests? 

• Educating myself about administrative and court orders and developing policies 

and procedures for responding to a subpoena or other order? 
68

• Educating myself about FOIA and developing policies and procedures for 

responding to FOIA requests? 

Summary for Non-Party Participants in the Dispute Resolution Session 

As the ADR program administrator, have I considered: 

• Establishing a standard confidentiality agreement for non-party participants? 

• Educating neutrals about the importance of requiring all non-party participants to 

sign such an agreement and of explaining the confidentiality provisions to them? 

• Ensuring that union members, who are present on behalf of a bargaining unit, sign 

the standard confidentiality agreement or an alternative one with strong 

confidentiality protections? 

• Being proactive in establishing a general protocol for union participation in 

dispute resolution proceedings or educating session neutrals about the importance 

of mediating union participation protocol on a case-by-case basis?