§574 — Title 5 Government Organization and Employees | U.S. Code

Summary

Keep talks and papers from mediation or similar dispute resolution private. Neutrals (like mediators or arbitrators) must not share private communications from the process except in a few cases: everyone involved and the neutral agree in writing (and a nonparty who gave the communication must also agree), the communication is already public, a law says it must be public (but the neutral should only make it public if no one else can), or a court decides disclosure is needed to prevent a clear injustice, to help prove a law was broken, or to protect public health or safety. Parties also must not disclose communications, but they may do so if they prepared the communication, all parties agree in writing, the material is public or required by law, a court orders disclosure for the same three reasons, the material is needed to interpret or enforce any agreement or award from the process, or (except for things made by the neutral) the material was available to all parties. If someone breaks these rules, the disclosed communication cannot be used in related court matters. The parties can make different confidentiality rules if they tell the neutral before starting, and those alternative rules cannot reduce protections needed for the exemption in subsection (j). If a neutral is served with a demand to disclose, they must try to notify parties and affected nonparty participants; anyone who gets that notice and does not offer to defend the neutral within 15 calendar days waives objections. Confidentiality does not block ordinary discovery of evidence that would be discoverable anyway, does not stop keeping records needed to document an agreement or order, allows anonymous research-sharing, and permits limited use of communications to resolve a dispute between the neutral and a party. Communications between a neutral and a party that cannot be disclosed are also exempt from disclosure under section 552(b)(3).

Title 5, §574

Government Organization and Employees — Source: USLM XML via OLRC

(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,

(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,

(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).

Notes & Related Subsidiaries

Editorial Notes

Codification section 574 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2255 of Title 7, Agriculture. section 574a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2226 of Title 7.

Prior Provisions

A prior section 574 was renumbered section 594 of this title.

Amendments

1996—Subsecs. (a), (b). Pub. L. 104–320, § 3(a), in introductory provisions struck out “any information concerning” after “be required to disclose”. Subsec. (b)(7). Pub. L. 104–320, § 3(b), amended par. (7) generally. Prior to amendment, par. (7) read as follows: “the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding”. Subsec. (d). Pub. L. 104–320, § 3(c), designated existing provisions as par. (1) and added par. (2). Subsec. (j). Pub. L. 104–320, § 3(d), amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: “This section shall not be considered a statute specifically exempting disclosure under section 552(b)(3) of this title.” 1992—Pub. L. 102–354 renumbered section 584 of this title as this section.

§574 Confidentiality