65 Federal Register 83085 (December 29, 2000)

FEDERAL ALTERNATIVE DISPUTE RESOLUTION COUNCIL

Confidentiality in Federal Alternative Dispute Resolution Programs

AGENCY: Federal Alternative Dispute Resolution Council/Department of Justice

ACTION: Guidance.

SUMMARY: This notice publishes a document entitled “Confidentiality in Federal Alternative

Dispute Resolution Programs,” which provides guidance to assist Federal agencies in developing

ADR programs. The document was created by a subcommittee of the Federal ADR Steering

Committee, a group of subject matter experts from federal agencies with ADR programs. It was

approved by the Federal ADR Council, a group of high-level government officials chaired by the

Attorney General. The document contains detailed guidance on the nature and limits of

confidentiality in Federal ADR programs and also includes guidelines for a statement on these

issues that Federal neutrals may use in ADR proceedings.

Interested persons have been afforded an opportunity to participate in the making of this

guidance. A draft was submitted for public comment in the Federal Register, and due

consideration has been given to the comments received. Comments were provided by private

sector organizations and government agencies from around the country.

ADDRESS: Address any comments to Jeffrey M. Senger, Deputy Senior Counsel for Dispute

Resolution, United States Department of Justice, 950 Pennsylvania Ave. NW, Room 4328,

Washington, D.C., 20530

Dated: December 19, 2000

_________________________

Jeffrey M. Senger

Deputy Senior Counsel for Dispute Resolution

United States Department of Justice

SUPPLEMENTARY INFORMATION:

Authority.

The Administrative Dispute Resolution Act of 1996 (ADR Act), 5 U.S.C. §§ 571-584,

requires each Federal agency to promote the use of ADR and calls for the establishment of an

interagency committee to assist agencies in the use of ADR. Pursuant to this Act, a Presidential

Memorandum dated May 1, 1998, created the Interagency ADR Working Group, chaired by the
Attorney General, to “facilitate, encourage, and provide coordination” for Federal agencies. In

the Memorandum, the President charged the Working Group with assisting agencies with training

in “how to use alternative means of dispute resolution.” The following document is designed to

serve this goal.

Introduction.

The subject of the document is confidentiality, which is a critical component of a

successful ADR process. Guarantees of confidentiality allow parties to freely engage in candid,

informal discussions of their interests in order to reach the best possible settlement of their claims. 

A promise of confidentiality allows parties to speak openly without fear that statements made

during an ADR process will be used against them later. Confidentiality can reduce posturing and

destructive dialogue among parties during the settlement process.

Public comment was solicited on a draft of this document that was published in the

Federal Register at 65 FR 59200, October 4, 2000. The draft was revised to incorporate many

suggestions on the draft received from the following private sector organizations, government

agencies, and individuals from around the country:

American Bar Association, Section of Administrative Law and Regulatory Practice

American Bar Association, Section of Dispute Resolution

Association of the Bar of the City of New York, Committee on Alternative Dispute

Resolution

Executive Council on Integrity and Efficiency

Federal Mediation and Conciliation Service

Martin J. Harty

Lawrence A. Huerta

Oregon Department of Agriculture Farm Mediation Program

Margaret Porter, Administrator, Federal Sharing Neutrals Program

Karen D. Powell

President’s Council on Integrity and Efficiency

Texas Center for Public Policy Dispute Resolution

United States Department of Agriculture, Office of Inspector General

United States Department of Energy, Chicago Operations Office

United States Department of Transportation, Federal Aviation Administration

United States Institute for Environmental Conflict Resolution

Richard C. Walters

Major comments fell primarily into three categories. The first is the interplay of the ADR

Act confidentiality provisions with federal “access” statutes that provide Federal entities authority

to seek access to certain classes of information. The second is the extent of confidentiality

protection for statements of parties made in joint session. The third is the model statement on

confidentiality for neutrals to read to parties at the beginning of a mediation. 
The ADR Council believes that the understanding of these issues will benefit from

experience and further collaboration with a broader community. The Council recognizes that its

timetable for comments to this document was limited and wants to make clear that it anticipates

further discussion of these issues. Future research, analysis, and practical experience in the field

are certain to have a continuing impact on these important areas, and this Guidance may need to

be revised or updated. We look forward to cooperation with interested parties in this work. 

The Relationship Between the ADR Act and Other Authorities.

The largest number of comments concerned the relationship between ADR Act

confidentiality guarantees and other laws or regulations that authorize access to certain classes of

information. Some commenters suggested that confidentiality should be narrower than provided

under the draft Guidance. For example, some commenters believed that threats of physical harm

and statements concerning ongoing or future criminal activity should not be confidential. Other

commenters stated that Federal statutes providing access for government investigatory agencies

should override the ADR Act’s confidentiality guarantees. 

In sharp contrast, other commenters believed that the confidentiality guarantees in the

draft should be much broader. Several commenters argued that the ADR Act prohibitions on

disclosure take precedence over any other Federal statute. These commenters argue that the

ADR Act allows Inspectors General and other investigators to obtain confidential

communications only through a court order obtained pursuant to the Act.

The Federal ADR Council acknowledges the points of view expressed in these comments

but does not concur with them. There does not appear to be an easy answer to the tension

between these authorities. While the ADR Act’s confidentiality provisions are clear, the access

provisions of other statutes are equally clear.

Standard techniques for resolving statutory conflicts do not provide a ready answer in this

situation. For example, arguments have been made on both sides as to which statute is more

specific. While the ADR Act specifically addresses the types of processes to which it applies,

some have argued that other acts, such as the Inspector General Act, do the same by specifically

describing the types of information that may be requested and the purposes for which a request

can be made. Nor does the legislative history of the ADR Act provide an apparent solution, as it

does not appear to contain any mention of this conflict.

A further problem is that the Federal ADR Council is not the appropriate body to provide

a final decision on this question. The Council is an advisory body created by the Attorney General

to issue guidance, but it is not authorized to promulgate binding interpretations in the manner of a

court.

While it is, of course, appropriate to give this matter careful attention, we note that the

circumstances when confidentiality might be challenged are, based on our experience, rare. The

Council believes that there are opportunities for ADR programs and Federal requesting entities to

establish good working relationships such that disputes over demands for disclosure of
confidential communications can be minimized. This report continues to endorse a cooperative

approach of this nature. 

In addition, the revised report endorses use of the standards in the ADR Act’s judicial

override provision, sections 574(a)(4) and (b)(5), stating that they should be used both formally,

when available, and informally to resolve the rare instances where requesting entities seek access

to communications protected by the ADR Act.

The Confidentiality of Statements Made in Joint Session.

Many comments were also received concerning the extent of confidentiality protection for

statements made by parties in joint session. The draft report stated that there is no confidentiality

protection for a party’s dispute resolution communications that are available to all other parties,

such as comments made or documents shared in joint session. Commenters noted that the

guidance on this issue differs from traditional ADR practices and party expectations regarding

confidentiality, and said this interpretation could reduce the utility of joint sessions. One

commenter suggested that the report’s interpretation of section 574(b)(7), the key provision on

this point, would render sections 574(b)(1)-(6) superfluous. Further, this commenter noted that

comments by several legislators and a Senate report indicate 574(b)(7) was intended to cover only

documents, not oral statements.

The Federal ADR Council acknowledges that the ADR Act’s treatment of this issue is

different from the practice in many ADR processes that do not involve the government, but notes

that the language of the statute is difficult to overcome. The Act states that there is no

confidentiality protection if “the dispute resolution communication was provided to or was

available to all parties in the dispute resolution proceeding.” 5 U.S.C. 574(b)(7). 

Communications in a joint session with all parties present fit squarely within this provision. 

Further, the Act’s definition of dispute resolution communication contains no exception for oral

statements. Indeed, it explicitly includes “any oral or written communication prepared for the

purposes of a dispute resolution proceeding” (emphasis added).

Despite the language of (b)(7), it appears that the remaining provisions of 574(b) provide

protection for limited types of communications. These other sections continue to protect, for

example, a party who is asked what a mediator said at any time, or a party who is asked what

another party said in a multi-party case when not all parties were present. With regard to

legislative history, an indicator of Congressional intent is the report of the final Conference

Committee in 1996, when the current statute was enacted. It states, “A dispute resolution

communication originating from a party to a party or parties is not protected from disclosure by

the ADR Act.” H.R. Rep. No. 104-841, 142 Cong. Rec. H11,110 (September 25, 1996). The

Committee could have used the word “document” if it wanted to exclude oral statements, but it

chose to use the term “dispute resolution communication,” which is explicitly defined in the

statute to include oral statements.

The Council does recognize that this provision could hinder a party’s candor in a joint

session, and therefore the Guidance suggests that parties address this issue through the use of a
contract. Confidentiality agreements are a standard practice in many ADR contexts, and their use

is encouraged in Federal dispute resolution processes where confidentiality of party-to-party

communications is desired. It is important to note that confidentiality agreements do not bind

anyone who is not a signatory. Further, such agreements will not protect against disclosure of

documents through the Freedom of Information Act (FOIA). Nevertheless, the majority of

problems caused by the plain language reading of section 574(b)(7) can be rectified through a

well-drafted confidentiality agreement.

The Model Confidentiality Statement for Use by Neutrals.

Finally, many commenters made suggestions regarding the Model Confidentiality

Statement for Use by Neutrals that appeared at the end of the draft report. Some commenters

argued that provisions should be added to the statement to ensure parties were made aware of

additional possible confidentiality exceptions. Others stated that the statement was already too

complex and potentially chilling. The Council appreciates the difficulty in making an opening

statement complete enough to put parties on notice of important issues, while not making it so

exhaustive that it discourages participation in ADR. The Council acknowledges that a welldrafted statement should accommodate all of these concerns as well as possible.

Other commenters noted that the statement may not be appropriate for all types of

proceedings or all types of neutrals. The Federal ADR Council agrees that the model statement

may not fit all situations and all ADR processes, or even all stages of a single ADR process. In

response to these comments, the Guidance now includes a set of guidelines for neutrals to use in

developing their own statements on confidentiality, appropriate to the situation. It is the neutral’s

responsibility to address confidentiality with the parties. Neutrals and agency ADR programs may

want to develop a standard confidentiality statement, consistent with the guidelines presented in

this report, that is appropriate to a particular ADR process.

The Guidance also includes an example of one possible confidentiality statement. It is

important to note that this statement should be tailored, as necessary, to fit the needs of each

particular case. This statement refers to a mediation, because mediation is the most common

ADR process in the Federal government.

Conclusion.

The balance of this revised report follows the same format as the draft report. Section I is

a reprint of the confidentiality provisions of the ADR Act. Section II is a section-by-section

analysis of the confidentiality provisions of the Act. Section III contains the revised questions and

answers on confidentiality issues likely to arise in practice. Section IV contains the new

guidelines for use in developing confidentiality statements. In addition, as assistance for neutrals

and agencies drafting confidentiality statements, Section IV contains an example of one possible

confidentiality statement.

Nothing in these guidance documents shall be construed 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.

The Federal ADR Council

Chair: Janet Reno, Attorney General, Department of Justice

Vice Chair: Erica Cooper, Deputy General Counsel, Federal Deposit Insurance Corporation

Members: Leigh A. Bradley, General Counsel, Department of Veterans Affairs; Meyer Eisenberg,

Deputy General Counsel, Securities and Exchange Commission; Mary Anne Gibbons, General

Counsel, U.S. Postal Service; Gary S. Guzy, General Counsel, Environmental Protection Agency;

Jeh C. Johnson, General Counsel, Department of the Air Force; Stewart Aly, Acting Deputy

General Counsel, Department of Defense; Rosalind Knapp, Acting General Counsel, Department

of Transportation; Anthony N. Palladino, Director, Office of Dispute Resolution, Federal Aviation

Administration, Department of Transportation; Janet S. Potts, Counsel to the Secretary,

Department of Agriculture; Harriett S. Rabb, General Counsel, Department of Health and Human

Services; Henry L. Solano, Solicitor, Department of Labor; John Sparks, Acting General Counsel,

Department of the Navy; Peter R. Steenland, Jr., Senior Counsel for Dispute Resolution, U.S.

Department of Justice; Mary Ann Sullivan, General Counsel, Department of Energy; Robert

Ward, Senior Counsel for Dispute Resolution, Environmental Protection Agency.
REPORT ON THE REASONABLE EXPECTATIONS OF

CONFIDENTIALITY UNDER THE ADMINISTRATIVE 

DISPUTE RESOLUTION ACT OF 1996

TABLE OF CONTENTS

I. Administrative Dispute Resolution Act

II. Section-By-Section Analysis of Confidentiality Provisions

III. Questions & Answers on Confidentiality under the Administrative

Dispute Resolution Act (ADR Act)

IV. Guidance on Confidentiality Statements for Use by Neutrals

I. ADMINISTRATIVE DISPUTE RESOLUTION ACT

Definitions (5 U.S.C. 571)

For the purposes of this subchapter, the term--

(1) "agency" has the same meaning as in section 551(1) of this title;

(2) "administrative program" includes a Federal function which involves protection of

the public interest and the determination of rights, privileges, and obligations of private

persons through rule making, adjudication, licensing, or investigation, as those terms

are used in subchapter II of this chapter;

(3) "alternative means of dispute resolution" means any procedure that is 

used to resolve issues in controversy, including, but not limited to, conciliation,

facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any

combination thereof;

(4) "award" means any decision by an arbitrator resolving the issues in controversy;

(5) "dispute resolution communication" means any oral or written communication

prepared for the purposes of a dispute resolution proceeding, including any

memoranda, notes or work product of the neutral, parties or nonparty participant; 

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

written agreement or arbitral award reached as a result of a dispute resolution

proceeding, is not a dispute resolution communication;
(6) "dispute resolution proceeding" means any process in which an alternative means

of dispute resolution is used to resolve an issue in controversy in which a neutral is

appointed and specified parties participate;

(7) "in confidence" means, with respect to information, that the information is provided--

 (A) with the expressed intent of the source that it not be disclosed; or

 (B) under circumstances that would create the reasonable expectation on behalf

of the source that the information will not be disclosed;

(8) "issue in controversy" means an issue which is material to a decision concerning an

administrative program of an agency, and with which there is disagreement--

 (A) between an agency and persons who would be substantially affected by the

decision; or

 (B) between persons who would be substantially affected by the decision;

(9) "neutral" means an individual who, with respect to an issue in controversy, functions

specifically to aid the parties in resolving the controversy;

(10) "party" means--

 (A) for a proceeding with named parties, the same as in section 551(3) of this

title; and

 (B) for a proceeding without named parties, a person who will be significantly

affected by the decision in the proceeding and who participates in the

proceeding;

(11) "person" has the same meaning as in section 551(2) of this title; and

(12) "roster" means a list of persons qualified to provide services as neutrals.

Confidentiality (5 U.S.C. 574)

(a) Except as provided in subsections (d) and (e), a neutral in a dispute resolution

proceeding 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, unless–

 (1) all parties to the dispute resolution proceeding and the neutral consent in

writing, and, if the dispute resolution communication was provided by a nonparty

participant, that participant also consents in writing;

 (2) the dispute resolution communication has already been made public;

 (3) the dispute resolution communication is required by statute to be made

public, but a neutral should make such communication public only if no other

person is reasonably available to disclose the communication; or

 (4) a court determines that such testimony or disclosure is necessary to--

 (A) prevent a manifest injustice;

 (B) help establish a violation of law; or
 (C) prevent harm to the public health or safety, 

of sufficient magnitude in the particular case to outweigh the integrity of dispute

resolution proceedings in general by reducing the confidence of parties in future

cases that their communications will remain confidential.

(b) A party to a dispute resolution proceeding shall not voluntarily disclose or through

discovery or compulsory process be required to disclose any dispute resolution

communication, unless–

(1) the communication was prepared by the party seeking disclosure;

 (2) all parties to the dispute resolution proceeding consent in writing;

 (3) the dispute resolution communication has already been made public;

 (4) the dispute resolution communication is required by statute to be made

public;

 (5) a court determines that such testimony or disclosure is necessary to--

 (A) prevent a manifest injustice;

 (B) help establish a violation of law; or

 (C) prevent harm to the public health and safety, 

of sufficient magnitude in the particular case to outweigh the integrity of dispute

resolution proceedings in general by reducing the confidence of parties in future

cases that their communications will remain confidential;

 (6) the dispute resolution communication is relevant to determining the existence

or meaning of an agreement or award that resulted from the dispute resolution

proceeding or to the enforcement of such an agreement or award; or

 (7) except for dispute resolution communications generated by the neutral, the

dispute resolution communication was provided to or was available to all parties

to the dispute resolution proceeding.

(c) Any dispute resolution communication that is disclosed in violation of subsection

(a) or (b), shall not be admissible in any proceeding relating to the issues in

controversy with respect to which the communication was made.

(d) (1) The parties may agree to alternative confidential procedures for disclosures

by a neutral. Upon such agreement the parties shall inform the neutral before

the commencement of the dispute resolution proceeding of any modifications to

the provisions of subsection (a) that will govern the confidentiality of the dispute

resolution proceeding. If the parties do not so inform the neutral, subsection (a)

shall apply.

(2) To qualify for the exemption established under subsection (j), an alternative

confidential procedure under this subsection may not provide for less disclosure

than the confidential procedures otherwise provided under this section.

(e) If a demand for disclosure, by way of discovery request or other legal process, is

made upon a neutral regarding a dispute resolution communication, the neutral shall

make reasonable efforts to notify the parties and any affected nonparty participants of

the demand. Any party or affected nonparty participant who receives such notice and
within 15 calendar days does not offer to defend a refusal of the neutral to disclose the

requested information shall have waived any objection to such disclosure.

(f) Nothing in this section shall prevent the discovery or admissibility of any evidence

that is otherwise discoverable, merely because the evidence was presented in the

course of a dispute resolution proceeding.

(g) Subsections (a) and (b) shall have no effect on the information and data that are

necessary to document an agreement reached or order issued pursuant to a dispute

resolution proceeding.

(h) Subsections (a) and (b) shall not prevent the gathering of information for 

research or educational purposes, in cooperation with other agencies, governmental

entities, or dispute resolution programs, so long as the parties and the specific issues

in controversy are not identifiable.

(I) Subsections (a) and (b) shall not prevent use of a dispute resolution communication

to resolve a dispute between the neutral in a dispute resolution proceeding and a party

to or participant in such proceeding, so long as such dispute resolution communication

is disclosed only to the extent necessary to resolve such dispute.

(j) A dispute resolution communication which is between a neutral and a party and

which may not be disclosed under this section shall also be exempt from disclosure

under section 552(b)(3).

II. SECTION-BY-SECTION ANALYSIS OF CONFIDENTIALITY

PROVISIONS (5 U.S.C. 574)

Section 574(a)

In general, a neutral in a dispute resolution proceeding is prohibited from disclosing

any dispute resolution communication or any communication provided to him or her in

confidence. Unless the communication falls within one of the exceptions listed below,

the neutral cannot voluntarily disclose a communication and cannot be forced to

disclose a communication through a discovery request or by any other compulsory

process. 

The exceptions to this general rule are found in subsections 574(a)(1) - (4), 574(d) and

574(e).
Section 574(a)(1)
A neutral may disclose a dispute resolution communication if all parties and the neutral

agree in writing to the disclosure. If a nonparty provided the dispute resolution

communication, then the nonparty must also agree in writing to the disclosure.

Section 574(a)(2)

A neutral may disclose a dispute resolution communication if the communication has

already been made public. 

Section 574(a)(3)

A neutral may disclose a dispute resolution communication if there is a statute which

requires it to be made public. However, the neutral should not disclose the

communication unless there is no other person available to make the disclosure.

Section 574(a)(4)

A neutral may disclose a dispute resolution communication or a communication

provided in confidence to the neutral if a court finds that the neutral's testimony, or the

disclosure, is necessary to:

A. prevent a manifest injustice;

B. help establish a violation of law; or

C. prevent harm to the public health and safety.

In order to require disclosure, a court must determine that the need for disclosure is of

sufficient magnitude to outweigh the detrimental impact on the integrity of dispute

resolution proceedings in general. The need for the information must be so great that

it outweighs a loss of confidence among other potential parties that their dispute

resolution communications or communications provided in confidence to the neutral will

remain confidential in future proceedings.

Section 574(b)

Unless a dispute resolution communication falls within one of the exceptions listed

below, a party cannot voluntarily disclose the communication and cannot be forced to

disclose a communication through a discovery request or by any other compulsory

process.

Section 574(b)(1)

The party who prepared the dispute resolution communication is free to disclose it.

Section 574(b)(2)

A party may disclose a dispute resolution communication if all the parties agree in

writing to the disclosure.

Section 574(b)(3)

A party may disclose a dispute resolution communication if the dispute resolution

communication has already been made public.

Section 574(b)(4)
A party may disclose a dispute resolution communication if there is a statute which

requires it to be made public.

Section 574(b)(5)

A party may be required to disclose a dispute resolution communication if a court finds

that the party's testimony, or the disclosure, is necessary to:

A. prevent a manifest injustice;

B. help establish a violation of law; or

C. prevent harm to the public health and safety.

In order to require disclosure, a court must determine that the need for disclosure is of

sufficient magnitude to outweigh the detrimental impact on the integrity of dispute

resolution proceedings in general. The need for the information must be so great that

it outweighs a loss of confidence among other potential parties that their dispute

resolution communications will remain confidential in future proceedings.

Section 574(b)(6)

1) Parties may use dispute resolution communications to show that a settlement

agreement was in fact reached or to show what the terms of this agreement mean.

2) Parties may also use dispute resolution communications in connection with later

issues regarding enforcing the agreement. 

Section 574(b)(7)

1) A party is not prohibited from disclosing another party’s dispute resolution

communication that was available to all parties in the proceeding. For example, in a

joint mediation session with all parties present, statements made and documents

provided by parties are not confidential. 

2) Dispute resolution communications coming from the neutral are nonetheless

confidential. 

Section 574(c)

No one may use any dispute resolution communication in a related proceeding, if that

communication was disclosed in violation of Section 574 (a) or (b).

Section 574(d)(1)

1) Parties may agree to alternative confidentiality procedures for disclosures by a

neutral.

2) Parties must inform the neutral of the alternative procedures before the 

dispute resolution proceeding begins.

3) If parties do not inform the neutral of the alternative procedures, the procedures

outlined in Section 574(a) will apply.

Section 574(d)(2)

1) Dispute resolution communications covered by alternative confidentiality procedures

may be protected from disclosure under FOIA. 
2) To qualify for this protection, the alternative procedures must provide for as much,

or more, disclosure than the procedures provided in Section 574.

3) Dispute resolution communications covered by alternative confidentiality

procedures do not qualify for protection from disclosure under FOIA if the alternative

procedures provide for less disclosure than those outlined in Section 574.

Section 574(e)

1) A neutral who receives a demand for disclosure, in the form of a discovery request

or other legal process, must make reasonable efforts to notify the parties and any

affected non-party participants of the demand.

2) Parties and non-party participants who receive a notice of a demand for disclosure

from a neutral:

a. must respond within 15 calendar days and offer to defend a refusal to

disclose the information; or

b. if they do not respond within 15 calendar days, they will be deemed to have

waived their objections to disclosure of the information. 

Section 574(f)

Evidence that is otherwise discoverable or admissible is not protected from disclosure

under this Section merely because the evidence was presented during a dispute

resolution proceeding.

Section 574(g)

The provisions of Section 574 (a) and (b) do not affect information and data that are

necessary to document agreements or orders resulting from dispute resolution

proceedings.

Section 574(h)

Information from and about dispute resolution proceedings may be used for educational

and research purposes as long as the parties and specific issues in controversy are not

identifiable.

Section 574(i)

Dispute resolution communications may be used to resolve disputes between the

neutral in a dispute resolution proceeding and a party or participant, but only to the

extent necessary to resolve a dispute between a neutral and party or participant.

Section 574(j)

A dispute resolution communication between a neutral and a party that is protected

from disclosure under this section is also protected from disclosure under FOIA

(Section 552(b)(3)).

III. Questions & Answers on Confidentiality under the Administrative

Dispute Resolution Act of 1996 (ADR Act)
GENERAL CONFIDENTIALITY RULES

1. What types of communications are confidential?

Subject to certain exceptions, the following two types of communications are potentially

confidential under the ADR Act:

A. A dispute resolution communication.

A dispute resolution communication is any oral statement made or writing

presented by a party, nonparty participant or neutral during a dispute resolution

proceeding prepared specifically for the purposes of a dispute resolution

proceeding. However, written agreements to enter into a dispute resolution

proceeding and any written final agreement reached as a result of the proceeding

are not dispute resolution communications. Citation: 5 USC 571(5).

Example: At the outset of the mediation conference, the parties sign an

agreement to mediate. During private meetings with the mediator, they each

make oral statements and give the mediator documents prepared specifically for

use in the mediation. At the conclusion of the mediation, the parties sign a

settlement agreement resolving the matter. 

The oral statements and written documents prepared specifically for use in the

mediation are dispute resolution communications. The agreement to mediate and

the settlement agreement are not dispute resolution communications.

B. A “communication provided in confidence to the neutral.”

A “communication provided in confidence to the neutral” is any oral statement or

written document provided to a neutral during a dispute resolution proceeding. 

The communication must be: (1) made with the express intent that it not be

disclosed or (2) provided under circumstances that would create a reasonable

expectation that it not be disclosed. Citation: 5 USC 571(7) and 574 (a).

Example: During private meetings, counsel for the contractor and for the agency

separately give the mediator different documents prepared before mediation which

contain highly sensitive information. Counsel for the contractor expressly asks the

mediator to keep his document confidential; counsel for the agency says nothing

about keeping her document confidential. Both documents are “communications

provided in confidence to the neutral.” The contractor’s documents are 

communications provided in confidence because counsel for the contractor

expressly asked the neutral to keep it confidential. The agency’s documents are 

communications provided in confidence because they were provided under

circumstances which create a reasonable expectation that they should not be

disclosed.
Example: An employee during a caucus in a mediation session tells the neutral

that he might appear inattentive during the joint session because he has been

diagnosed recently with cancer and is taking medicine. He tells the mediator not

to share that information with the other party, his supervisor. The information is a

communication provided in confidence because the employee provided it to the

neutral with the expressed intent that it not be disclosed.

2. What confidentiality protection is provided for dispute resolution

communications?

Generally, neutrals and parties may not voluntarily disclose or be compelled to disclose

dispute resolution communications. The ADR Act contains specific exceptions to the

general rule. (See Question 11) Citation: 5 USC 574(a), (b).

Example: A party resolves his EEO complaint through mediation and signs a 

written agreement settling all issues. The mediator subsequently receives a

phone call from another employee asking 1) what was management’s position in

the mediation, and, 2) what relief was obtained. The mediator, as a neutral, may

not disclose to the employee any communications made by management in the

dispute resolution proceeding. However, the neutral may provide the employee

with a copy of the final agreement which sets forth the relief obtained.

Example: During a mediation involving ten parties, two meet in caucus with the

mediator and discuss their common interests. Later, a person contacts one of

the two parties asking about what the other party said during the caucus with the

mediator. The first party may not disclose what the other party said during the

caucus. 

3. What confidentiality protection applies to a “communication provided in

confidence” by a party to a neutral?

Generally, neutrals may not disclose any communication provided to them in

confidence. The ADR Act contains specific exceptions to the general rule. (See

Question 11.) Citation: 5 USC 574(a).

Example: A government contractor during a caucus in a mediation session tells

the neutral the details of his proposed “bid” for a government contract. The

neutral may not disclose the information because the program participant would

have a reasonable expectation that the information would not be shared.

4. What is a dispute resolution proceeding?

A dispute resolution proceeding is an alternative means of resolving an issue in

controversy arising from an agency’s program, operations or actions. The ADR Act

supports a broad reading of the term “dispute resolution proceeding.” The ADR Act
broadly incorporates all ADR forms and techniques, including any combination of ADR

forms or techniques. In defining an issue in controversy, the ADR Act incorporates

disagreements between an agency and parties or between parties. This indicates a

legislative intent to provide for the use of ADR processes in an inclusive manner to

assist the wide range of situations where disagreements may arise in the conduct of an

agency’ programs, operations, or actions. A dispute resolution proceeding includes

intake and convening stages as well as more formal stages, such as mediation. 

Citation: 5 USC 571(3), (6) and (8).

Example: A neutral is engaged to help resolve a dispute between an agency

and one of its contractors. The process managed by the neutral (i.e.,mediation,

arbitration, or another technique) is a dispute resolution proceeding.

Example: A dispute exists between an agency and several other parties with

regard to the agency’s interpretation of a regulation. The work of a neutral to

convene the parties (i.e., to bring them together for purposes of conducting a

negotiated settlement) is a dispute resolution proceeding.

5. Who is a neutral?

A neutral is anyone who functions specifically to aid the parties during a dispute

resolution process. A neutral may be a private person or a federal government

employee who is acceptable to the parties. There may be more than one neutral during

the course of a dispute resolution process (e.g., an “intake” neutral, a “convener”

neutral, as well as the neutral who facilitates a face-to-face proceeding). It is important

that agencies clearly identify neutrals to avoid misunderstanding. 

The ADR Act supports a broad reading of the term “neutral.” In defining neutral, the

ADR Act refers to the services of an individual who functions to aid parties in the

resolution of an issue in controversy. This indicates the intent of the ADR Act to

support the use of neutrals to aid parties during all stages of the resolution of a

disagreement, from the convening of participants and design of effective dispute

resolution procedures to the conduct of settlement discussions.

The ADR Act provides that a neutral should be acceptable to the parties. In light of the

broad variety of ADR services and types of disagreements encompassed by the ADR

Act, this requirement must be considered on a case by case basis to provide flexibility

in how individual parties “accept” a neutral. If an agency clearly identifies an individual

as an intake or convening neutral, an agency or private party who contacts the neutral

for the purpose of seeking aid in resolving a disagreement indicates an acceptance of

the neutral for that purpose. Likewise, the voluntary participation of a party in an ADR

process conducted by a neutral indicates an acceptance of the neutral. Citation: 5

USC 571(3), (6), (8),and (9) & 573(a).
Example: An employee contacts an agency ADR program seeking assistance in

resolving a dispute and describes a dispute to an intake person. The

conversation is confidential only if the intake person has been appropriately

identified as a neutral by the agency to aid parties in resolving such disputes.

Example: An EEO office automatically assigns, on a rotating basis, a trained

neutral from within the agency, without consulting the parties. The parties can

be deemed to have agreed to the neutral by virtue of their participation. 

6. Who is a party?

A party is any person or entity who participates in a dispute resolution proceeding and 

is named in an agency proceeding or will be affected significantly by the outcome of an

agency proceeding. Consistent with common legal practice, the obligations of parties

extend to their representatives and agents. Citation: 5 USC 571(10).

Example: An agency convenes a mediation of all affected stakeholders to

resolve an environmental dispute. Every person, business entity, state or local

government, and non-profit organization that will be significantly affected by the

outcome of the process and agrees to participate is a party to the mediation.

7. What constitutes disclosure? 

Disclosure is not defined in the ADR Act. Disclosure occurs when a neutral, a party, or

a non-party participant makes a communication available to some other person or

entity by any method. 

Example: A federal employee is mediating a workplace dispute as a collateral

duty. The mediator’s supervisor asks for a briefing on the case. Telling the

supervisor “dispute resolution communications” or “communications provided in

confidence” would constitute disclosure.

8. May a party or neutral disclose dispute resolution communications in

response to discovery or compulsory process?

In general, neither a neutral nor a party can be required to disclose dispute resolution

communications through discovery or compulsory process. Compulsory processes

include any administrative, judicial or regulatory process that compels action by an

individual. Citation: 5 USC 574(a) & 574(b).

Example: A neutral receives a notice of deposition from an attorney in a lawsuit

regarding a matter which the neutral mediated. The attorney informs her that

she will be asked about the statements by the complainant made during the

mediation. In the deposition, the neutral may not disclose the complainant’s

statements because they are dispute resolution communications. 
9. What confidentiality protection is provided for communications by a

nonparty participant in a dispute resolution proceeding?

The term “nonparty participant” is not defined in the ADR Act. However, common

usage suggests that a nonparty participant is an individual present during a dispute

resolution proceeding other than a party, an agent or representative of a party, or the

neutral. This could be an individual who is asked by the neutral to present information

for use of the neutral or parties. Dispute resolution communications made by nonparty

participants are subject to the same protections and exceptions as are all other dispute

resolution communications. A neutral needs to obtain the written consent of all parties

and the nonparty participant to disclose such communications. Citation: 5 USC

574(a)(1).

Example: An expert talks about inflation and wages she prepared for mediation. 

The communication is confidential and cannot be disclosed by the neutral

without the consent of all the parties and the expert.

Example: An expert retained by the neutral discusses his environmental

impact research and participates in subsequent discussions with the parties. 

The expert is not prohibited from disclosing any communications from those

discussions, absent a signed agreement to that effect.

10. When in an ADR process do the confidentiality protections of the ADR Act

apply?

Confidentiality applies to communications when a person seeking ADR services

contacts an appropriate neutral. A communication made by a party to a neutral is

covered even if made prior to a face-to-face ADR proceeding. Confidentiality does not

apply to communications made after a final written agreement is reached or after

resolution efforts aided by the neutral have otherwise ended. Citation: 5 USC 571(6),

574(a) and (b).

Example: Two parties have agreed to use an ADR process to try to resolve a

dispute and have selected a neutral. Prior to the first session between the

parties and the neutral, the neutral communicates independently with each of the

parties. The confidentiality provisions of the ADR Act apply to these discussions.

Example: The parties to an ADR process have completed a dispute resolution

proceeding and signed a settlement agreement. One of the parties subsequently

calls the neutral to discuss how the settlement is being implemented. This

discussion is not confidential under the ADR Act because the dispute resolution

proceeding has already ended.

EXCEPTIONS TO CONFIDENTIALITY PROTECTION 
11. Under what circumstances may communications be disclosed under the

ADR Act?

A. A party’s own communications during a dispute resolution

proceeding.

A party may disclose any oral or written communication which the party makes or

prepares for a dispute resolution proceeding. Citation: 5 USC 574(b)(1).

Example: During a separate caucus, the contractor drafts a document

showing the financial impact of his breach of contract. The mediation is

unsuccessful. The government subpoenas the contractor to produce the

document for an administrative hearing. The contractor cannot be

compelled to produce the document. She may, however, voluntarily

produce it. 

B. A dispute resolution communication that has “already been made

public.” 

The ADR Act ‘s confidentiality protections do not apply to communications that

have already been made public. Although the ADR Act does not define the term,

examples of communications that have “already been made public” could

include, for example, the following:

1. The communication has been discussed in an open Congressional

hearing;

2. The communication has been placed in a court filing or testified

about in a court in a proceeding not under seal;

3. The communication has been discussed in a meeting which is

open to the public;

4. The communication has been released under FOIA.

Citation: 5 USC 574(a)(2) & 574(b)(3).

C. Communications required by statute to be made public.

There are a handful of statutes which require certain classes of information to be

made public. To the extent that such information is shared during a dispute

resolution proceeding the information is not confidential. Citation: 5 USC

574(a)(3), 574(b)(4).

Example: Section 114(c) of the Clean Air Act states that certain records,

reports or information obtained from regulated entities “shall be made

available to the public.” These communications are not subject to the

ADR Act prohibitions on disclosure by a neutral or a party.
D. When a court orders disclosure.

A court may override the confidentiality protections of the ADR Act in three

limited situations. In order to override the confidentiality protections, a court

must determine that testimony or disclosure of a communication is necessary to

either (1) prevent a manifest injustice, (2) help establish a violation of law, or (3)

prevent harm to the public health or safety. The court must also determine, by

applying a balancing test, that the need for the information is of a sufficient

magnitude in the particular case to outweigh the integrity of dispute resolution

proceedings in general by reducing the confidence of parties in future cases that

their communications will remain confidential. Citation: 5 USC 574(a)(4) &

(b)(5).

Example (to prevent a manifest injustice): During a separate caucus

in a Federal Tort Claims Act mediation, a husband tells the mediator that

his wife’s claims to have been paralyzed in an accident were false. 

Mediation terminates, and the case proceeds to trial. Information about

the wife’s statements comes to the attention of the insurance company 

which seeks an order to compel testimony from the mediator. The court, in

applying the balancing test in 574(a)(4), may order the mediator to

disclose information if it finds that a failure to disclose the information

would result in a manifest injustice to the moving party. 

Example (help establish a violation of law): During a mediation

regrading the dismissal of a federal employee, the employee divulges to

the mediator that he charged personal goods to his government credit

card. In a later action against the employee for misuse of government

funds, the neutral is asked to testify about what he learned in the

mediation. The court, in applying the balancing test in 574(a)(4), may

require the neutral to testify if it determines that the neutral’s testimony is

necessary to help establish a violation of law. 

Example (prevent harm to the public health or safety): During

mediation of a tort claim, an engineer discloses to the neutral that her

structural evaluation indicated serious defects in a building, but that her

supervisor refused to accept the report as written and threatened her job

security if she did not alter the report. When the case comes to trial, the

plaintiff subpoenas the neutral to testify. The court, in applying the

balancing test in 574(a)(4), may require the neutral to testify if it

determines that the neutral’s testimony is necessary to prevent harm to

the public safety.

E. In order to resolve a dispute over the existence or meaning of a

settlement arrived at through a dispute resolution proceeding. 
The ADR Act creates an exception to the general rule of nondisclosure by a

party for the limited purpose of determining the existence or meaning of an

agreement arrived at through a dispute resolution proceeding. Parties may also

disclose communications as required to enforce an agreement arrived at through

a dispute resolution proceeding. Citation: 5 USC 574(b)(6). 

Example: Parties may disclose dispute resolution communications as

required to show that a settlement agreement was reached or explore the

meaning of the terms of this agreement.

F. Parties’ communications in joint session, with all parties present. 

A neutral may not disclose dispute resolution communications made in joint

session. However, except for communications by a neutral, there is no

prohibition against a party disclosing communications available to all other

parties in the proceeding. Citation: 5 USC 574(b)(7).

Example: In a joint session, with all parties present, a party admits that

she was unaware of the defect in question. The other parties may

disclose the information without violating the ADR Act.

G. Information sought for specific purposes. 

The ADR Act allows for the disclosure of information for educational and

research purposes, in cooperation with agencies, governmental entities, or

dispute resolution programs. However, it is required that the parties and specific

issues in controversy not be identifiable. Citation: 5 USC 574(h).

Example: An individual who has served as a neutral in a number of

agency ADR proceedings may share collected experiences when

participating in a training program, provided that the parties and specific

issues are not identifiable.

Example: An ADR program administrator may provide statistical

information to an auditor or inspector who is evaluating the efficiency and

effectiveness of an ADR program, provided that the parties and specific

issues are not identifiable. 

H. Communications required to resolve disputes that arise between the

neutral and a party. 

If there is a dispute between a neutral and a party regarding the conduct of a

dispute resolution proceeding, both may disclose dispute resolution

communications to the extent necessary to resolve the dispute. Citation: 5

U.S.C. 574(I)
Example: If a party refuses to pay the neutral for services, the neutral

can disclose dispute resolution communications to the extent necessary

to establish that payment is due. 

12. Are a neutral’s communications to parties in joint session or otherwise

provided to all parties confidential?

Yes. The ADR Act protects communications by a neutral. A party, however, may not

use this provision to gain protection for a communication by providing it to the neutral

who then provides it to another party. The ADR Act provides that the communication

must be “generated” by the neutral, not just passed along by the neutral. Citation: 5

USC 574 (b)(7). (See H. Rept. 104-841,142 Cong. Rec. H11108-11 (September 25,

1996).

Example: Early neutral evaluations or settlement proposals provided to the

parties by a neutral are protected from disclosure by either the neutral or the 

parties.

13. Can confidentiality attach to communications that are provided to or

available to fewer than all of the parties?

Yes. The ADR Act does not prohibit parties from disclosing dispute resolution

communications that are “provided to or ... available to all parties to the dispute

resolution proceeding.” Under a plain reading of the statute, communications are not

protected when provided to, or available to, all parties; thus, they remain protected if

they are provided to, or are available to, some (but not all) of the parties in a dispute.

The legislative history states, “A dispute resolution communication originating from a

party to a party or parties is not protected from disclosure by the ADR Act.” H.R. Rep.

No. 104-841, 142 Cong. Rec. H11110 (Sept. 25, 1996). The plain language of the

statute is not inconsistent with this piece of legislative history, in that it can be

interpreted to mean both parties in a two-party (“party to the other party”) or all parties

in a multi-party dispute (“party to all other parties”). Citation: 5 U.S.C. 574(b)(7). 

Example: Six parties participate in a mediation. The mediator initially convenes

a day-long meeting with all parties together in a joint session. The mediator

believes that four have similar interests and convenes a separate meeting with

just those four. Confidentiality attaches to communications which take place at

the separate meeting, since fewer than all parties are present. Only if all six

were present, or the information was available to all six, would disclosure be

permissible under the (b)(7) exception.

14. Does the ADR Act prevent the discovery or admissibility of all information

presented in a dispute resolution proceeding?
No. Information presented in a dispute resolution proceeding that is not protected by

the ADR Act may be subject to discovery or admissibility as evidence in a subsequent

legal action. Citation: 5 USC 574(f). 

Example: During a mediation proceeding in a dispute over a promotion, the

complainant produces notes she made during an interview with the selecting

official. She shares her interview notes with the neutral and management

representative. In private caucus with the neutral, complainant prepares

handwritten notes of the neutral’s comments regarding the case. When the case

goes to litigation, the agency requests discovery of complainant’s interview

notes, as well as the notes reflecting the neutral’s assessment of the case.

The agency would not be prohibited from seeking complaint’s notes of the

interview with the selecting official. The interview notes are not dispute

resolution communications because they were not prepared for purposes of the

dispute resolution proceeding. However, the complainant’s notes reflecting the

neutral’s assessment of her case constitute a dispute resolution communication

because they were prepared for the purpose of the dispute resolution

proceeding. 

15. Does the ADR Act protect against the disclosure of dispute resolution

communications in response to requests by federal entities for such

information?

Section 574 of the ADR Act prohibits a neutral or a party from disclosing, voluntarily or

in response to discovery or compulsory process, any protected communication. The

ADR Act further states that neutrals and parties shall not “be required” to disclose such

communications. 

 A number of federal entities have statutory authority to request disclosure of

documents from federal agencies and employees. Examples of such statutes include,

but are not limited to, the Inspector General Act (5 USC App.) and the Whistle blower

Protection Act (5 USC Section 1212(b)(2)). Further, certain statutes may be read to

impose an affirmative obligation to disclose certain classes of information. These

include, 18 USC Section 4 (knowledge relating to the commission of a felony) and 28

USC Section 535 (investigation of crimes involving Government officers and

employees). 

None of the exceptions to the ADR Act’s confidentiality provisions directly applies to the

above-mentioned authorities. For example, none of the authorities cited above

constitutes a requirement that information be “made public” pursuant to ADR Act

section 574 (a)(3) and (b)(4). In addition, the judicial override procedure outlined in

Section 574 (a)(4) and (b)(5) will not always be available when a conflict between the

ADR Act and disclosure statute arises. 
In summary a tension among these authorities exists. The issues of statutory

interpretation between these differing authorities have not yet been considered in an

appropriate forum. Although we do not anticipate that direct conflicts between the ADR

Act and one of the disclosure statutes will be common, it is important for agencies,

neutrals, and participants to be aware of the potential issue. 

The ADR Act’s judicial override provision contains a standard for determining if

disclosure is necessary despite the Act’s general prohibition on disclosure. The judicial

override procedure should be followed whenever possible by requesting entities. Use

of this statutorily authorized procedure will provide the best guidance to both the ADR

community and requesting entities. Even when the override procedure is not available

(because of jurisdictional limitations, for example), this standard should be used in

determining whether to disclose an otherwise protected communication. The override

provision, at section 574(a)(4) & (b)(5), takes into account the need for access to

information to prevent manifest injustice, establish violations of law, and prevent harm

to public health and safety, while considering the integrity of dispute resolution

proceedings in general and the consequences breaching confidentiality.

There are also several practical steps that agencies can take to minimize the likelihood

of a dispute over a demand for disclosure of confidential communications. Agency

ADR programs and potential requesting entities should enter into a dialogue to

establish a framework for how potential demands for disclosure will be handled. The

following principles should be included in such a framework:

C Agency ADR programs and requesting entities should educate each other about

their respective missions.

• Procedures should be established for access to information that balance the

need to prevent manifest injustice, help establish a violation of law, and prevent

harm to the public health and safety against the need to protect the integrity of

the agency’s dispute resolution proceedings. 

• ADR programs should identify classes of information that are not confidential,

such as budgetary and statistical information regarding the number and types of

cases and processes used.

• Requesting entities should use non-confidential information as a basis for

information requests. 

• Requesting entities should seek confidential information only if the information is

not available through other means.

• Requesting entities should seek information from a neutral only if the information

is not otherwise available.
• The ADR program and requesting entities should agree to procedures to resolve

specific disagreements that arise with regard to the disclosure of information.

ALTERNATIVE PROCEDURES TO ESTABLISH CONFIDENTIALITY

PROTECTION

16. May parties agree to confidentiality procedures which are different from 

those contained in ADR Act?

Yes. Parties may agree to more, or less, confidentiality protection for disclosure by the

neutral or themselves than is provided for in the Act. 

The ADR Act provides that parties may agree to alternative confidential procedures for

disclosures by a neutral. While there is no parallel provision for parties, the exclusive

wording of this subsection should not be construed as limiting parties’ ability to agree to

alternative confidentiality procedures. Parties have a general right to sign

confidentiality agreements, and there is no reason this should change in a mediation

context. 

If the parties agree to alternative confidentiality procedures regarding disclosure by a

neutral, they must so inform the neutral before the dispute resolution proceeding

begins or the confidentiality procedures in the ADR Act will apply. An agreement

providing for alternative confidentiality procedures is binding on anyone who signs the

agreement. On the other hand, such an agreement will not be binding on third parties

and may not guarantee that dispute resolution communications will be protected by the

ADR Act from disclosure to such parties. Consistent with prudent practice, it is

recommended that any such agreements be documented in writing. (See Questions 23

and 24 for potential FOIA implications.) Citation: 5 USC 574(d)(1).

Example: Parties to an ADR proceeding can agree to authorize the neutral to

use his or her judgment about whether to voluntarily disclose a protected

communication, as long as the neutral is informed of this agreement before the

ADR proceeding commences.

Example: Parties to an ADR proceeding can agree that they, and the neutral,

will keep everything they say to each other in joint session confidential. A third

party expert who overhears their discussions is not bound by their agreement

unless she also signs it. 

ISSUES REGARDING THE DISCLOSURE OF PROTECTED

COMMUNICATIONS
17. What restrictions are put on the use of confidential communications

disclosed in violation of the ADR Act?

If the neutral or any participant discloses a confidential communication in violation of

Sections 574(a) or (b), that communication is not admissible in any proceeding that is

related to the subject of the dispute resolution proceeding in which the protected

communication was made. A dispute resolution communication that was improperly

disclosed may not be protected from use in an unrelated proceeding. Citation: 5

U.S.C. 574(c).

Example: A supervisor and employee are engaged in a very bitter dispute

regarding allegations of sexual harassment. They try mediation with a well

respected mediator who is considered an expert in federal sexual harassment

law. During a separate caucus between the mediator and the supervisor

(alleged harasser) the mediator pointedly questioned the strength of the

supervisor’s defense. 

The mediation is unsuccessful, and the EEOC issues a decision finding that the

supervisor did not sexually harass his employee. The supervisor is ecstatic and

talks to his friends about the situation, mocking some of the “wrong” comments

the mediator made. 

The employee appeals the case. She learns of the supervisor’s reaction to the

mediator’s comments and wants to use the information in her brief. She will not

be able to use the information because (1) the supervisor improperly disclosed

information generated by the neutral, and (2) the appeal is a related proceeding.

Example: A federal agency and two contractors are mediating a dispute over an

alleged breach of contract. During a caucus with the mediator, the two

contractors share confidential information about their financial status. After

completing mediation, Contractor 1, in violation of the ADR Act, tells Company X

about Contractor 2's financial status. 

A year later, Company X and Contractor 2 are in a dispute over a different

contract in which Contractor 2's financial status is in dispute. Company X wants

to use the information disclosed by Contractor 1. Company X would not be

precluded by the ADR Act from using the information disclosed by Contractor 1,

because the subject of the current proceeding is not related to that of the prior

mediation.

18. What is the penalty for disclosing confidential communications in violation

of the statute?
The ADR Act does not specify any civil or criminal penalty for the disclosure of a

protected communication in violation of the Act. However, such disclosure may violate

other laws, regulations or agreements of the parties. 

Example: The parties agree in writing to keep confidential all statements they

make in joint session. The agreement includes a provision that anyone

disclosing statements made in joint session will be liable for damages. A party

issues a press release disclosing statements made in joint session. The other

parties may proceed against him in a suit for damages. 

19. What must a neutral do when he or she receives a “demand for disclosure”

of dispute resolution communications?

Although the ADR Act does not define the term, a “demand for disclosure” may be

understood as a formal request for confidential information. The demand must be

made by a discovery request or some other legal process. 

Upon receiving a demand for disclosure of a dispute resolution communication, a

neutral must make a reasonable effort to notify the parties and any affected non-party

participants of the demand. Notice must be provided even if the neutral believes that

there is no basis for refusing to disclose the communication. 

Notice should be delivered to the last address provided by a party. Parties have fifteen

calendar days, from the date they receive the notice, in which to offer to defend the

neutral against disclosure. Therefore, notice should be sent by a process that provides

certification of delivery. For example, delivery could be by registered mail, courier, or

by any other carrier that provides tracking and certification of delivery. Use of

telephone or email communications as notice could be problematic. Since the parties

must respond within 15 calendar days or waive their right to object to disclosure, there

should be a written record of when the notice was sent and when it was received. In

certain rare circumstances, such as a criminal investigation, a neutral may be asked

not to notify parties and others (e.g., program administrators) of a request for

information. Under such circumstances, the neutral should seek the advice of counsel.

Citation: 5 USC 574(e).

Example: A colleague asks a neutral what happened in a mediation. The

neutral must simply refuse to discuss the matter. The neutral does not need to

notify the parties of the request since the demand was not a formal request for

information.

Example: A neutral receives a formal discovery request for information on what

happened in a mediation. Despite the fact that the neutral believes that the

requested information could be disclosed under the ADR Act, the neutral must

notify the parties of this demand for disclosure using the procedures described

above. 
20. What can/must parties do when they receive notice of a demand for

disclosure from the neutral?

If a party has no objection to the disclosure of confidential communications, it need not

respond to the notice. On the other hand, if a party believes that the sought-after

communications should not be disclosed, the party should notify the neutral within 15

calendar days and make arrangements to defend the neutral from the demand for

disclosure. Federal agencies should develop departmental procedures for responding

to such notices.

Example: A party receives notice from a neutral that she has been served with

a subpoena from the agency to produce documents and testify in a court

proceeding. The party fulfills his responsibility under the Act by notifying the

neutral within 15 calendar days that he objects to the demand for disclosure and

that he will obtain counsel to defend the neutral. 

21. What responsibilities do agencies have for ensuring that the notification

requirement is met?

An agency does not have a notification requirement under the ADR Act. However, in

some Federal ADR programs the neutral may be a Federal employee performing

collateral duty. Requiring these neutrals to keep records of parties to dispute

resolution proceedings may be unduly onerous and ineffective. Agencies should

develop administrative procedures to ensure that the necessary records are retained. 

It is ultimately the neutral’s responsibility to ensure that the notice is sent to the parties.

Example: A Federal employee who serves on collateral duty as a mediator for

the ADR program of another agency receives a demand for disclosure but does

not know how to locate the parties. She approaches the ADR program manager

of the other agency for assistance. The program manager provides the neutral

with sufficient information to deliver notice as required under the ADR Act. 

22. May a neutral refuse to disclose communications even when the parties

have failed to agree to defend the neutral?

Yes. The ADR Act permits, but does not compel, a neutral to disclose if the parties

have waived objections to disclosure under Section 574(e). While the statute is clear

that a neutral "shall not" disclose where a party objects, the statute does not say that a

neutral must disclose if a party does not object. 

The effectiveness and integrity of mediation and other ADR processes is largely

dependent on the credibility and trustworthiness of neutrals. In order to safeguard the

integrity of ADR programs and to eliminate the potential for eroding confidence in future

ADR proceedings, neutrals should be allowed to rely on established codes of ethics
and confidentiality standards to support a decision not to disclose. Citation: 5 USC

574(a) & (e).

Example: A neutral receives a subpoena requesting disclosure of

confidential communications from a dispute resolution process. The

parties do not object to the disclosure and have not offered to defend the

neutral against the subpoena. The neutral may still, at his or her own

expense, resist the subpoena if the neutral objects to the disclosure.

ISSUES RELATED TO THE FREEDOM OF INFORMATION ACT (FOIA)

23. What dispute resolution communications are protected from disclosure

under FOIA?

Dispute resolution communications between a neutral and a party that may not be

disclosed under the ADR Act are specifically exempted from disclosure under section

552(b)(3) of the Freedom of Information Act. This could include communications that

are generated by a neutral and provided to all parties, such as an Early Neutral

Evaluation. In addition, other FOIA exemptions may apply.

Since only Federal records are subject to FOIA, dispute resolution communications that

are not Federal records are not subject to the disclosure requirements of FOIA. 

Therefore, this subsection would not apply to oral dispute resolution communications

because they are not records. Citation: 5 USC 574(j).

Example: During mediation of a contract claim, the parties (a contractor and the

agency) request a neutral to provide an evaluation of the merits of their

respective cases. The neutral agrees, reviews the evidence, and presents each

party separately with a written assessment of their respective cases. The

contractor submits a FOIA request to obtain a copy of the neutral’s written

evaluation of the agency’s case. The FOIA request can be denied under section

574(j) because the document is a dispute resolution communication generated

by a neutral and may not be disclosed under the ADR Act.

24. If parties agree to alternative confidentiality procedures, are dispute

resolution communications subject to FOIA?

Parties may agree to confidentiality procedures that differ from those otherwise

provided in the Act. Parties should be aware, however, that the FOIA exemption might

not apply to all the communications that are protected under their agreement to use

alternative confidentiality procedures. 

If the alternative confidentiality procedures agreed to by the parties provide for less

disclosure than the ADR Act permits, those dispute resolution communications that
would not be protected under the ADR Act are also not protected by the FOIA

exemption in section 574(j). Parties cannot contract for more FOIA protection than the

ADR Act provides. Citation: 5 USC 574(d) & (j).

Example: Parties enter into a confidentiality agreement as part of an agreement

to mediate. The parties agree to keep statements made and documents

presented during joint session confidential . Documents that are made available

by the parties during joint session are not protected by the FOIA exemption in

574(j), even though they are provided by contract to be kept confidential.

OTHER CONSIDERATIONS

25. Do the ADR Act’s confidentiality provisions apply differently to government

and private sector neutrals?

No. There are, however, certain circumstances in which the choice of neutral may

affect disclosure related to ADR processes. For example, because a private neutral’s

records are likely not deemed “agency records,” they likely will not be subject to FOIA

or to record retention requirements. Additionally, the IG Act authorizes an IG to

subpoena a private neutral, but not a government neutral. Finally, a private neutral is

not subject to some of the statutory provisions that create a tension with the ADR Act’s

non-disclosure requirements (See Question 15). 

IV. GUIDANCE ON CONFIDENTIALITY STATEMENTS FOR USE BY

NEUTRALS

Neutrals should make introductory remarks at the outset of a dispute resolution process

explaining applicable ADR Act confidentiality provisions. Which provisions apply will

vary, depending on such things as the type of ADR used, the number of parties

participating, and the issues involved. In addition, agencies may choose to highlight or

supplement ADR Act provisions to meet specific programmatic needs. We provide

guidelines below to assist neutrals in crafting appropriate introductory confidentiality

statements. 

An introductory confidentiality statement should address the following topics:

1) Application of the ADR Act to administrative ADR processes;

2) The intent of the ADR Act to provide confidentiality assurances for communications

between the parties and the neutral occurring during an ADR proceedings;

3) Confidentiality between and among parties, consistent with this Guidance; 
4) Exceptions to the Act’s nondisclosure provisions pertinent to the particular dispute ;

5) Availability of alternative confidentiality protections through written agreement and

applicable limitations; and

6) Authorities other than the ADR Act that may also apply.

Example: The confidentiality provisions of the Administrative Dispute Resolution

Act apply to this mediation. The Act focuses primarily on protecting private

communications between parties and the mediator. Generally speaking, if you

tell me something during this process, I will keep it confidential. The same is

true for written documents you prepare for this process and give only to me.

There are exceptions to the confidentiality provisions in the Act. For

example, statements you make with all the other parties in the room or

documents you provide to them are not confidential. Also, in unusual

circumstances, a judge can order disclosure of information that would prevent a

manifest injustice, help establish a violation of law, or prevent harm to public

health and safety.

You can agree to more confidentiality if you want to. For example, you

can agree to keep statements you make or documents you share with the other

parties confidential . If you want to do this, everyone will need to agree in

writing. Outside parties may, however, still have access to statements or

documents as provided by law.

[This is only an example of one possible confidentiality statement. It is

important that this statement be tailored to fit the needs of each particular

case.]