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

Summary

Keeps communications in dispute resolution (like mediation) private. A neutral (the mediator) must not reveal or be forced to reveal confidential talks or things said to them unless one of a few things happens: everyone involved and the neutral agree in writing (and any nonparty who gave the information also agrees); the information is already public; a law requires it to be public (but only if no one else can give it); or a court finds disclosure is needed to stop a clear injustice, to show a law was broken, or to protect public health or safety. Parties also may not disclose these communications, except when the party made the communication, everyone agrees in writing, it’s public or required by law, a court orders it for the same three reasons, it’s needed to interpret or enforce the agreement or award from the process, or (except for neutral-made materials) the information was already given to all parties. If someone reveals protected communications in violation of these rules, that information cannot be used in court about the same issues. Parties can agree ahead of time to different confidentiality rules, but they must tell the neutral before the process starts, and those alternate rules cannot be weaker if they want the special exemption under subsection (j). If a neutral gets a legal demand for documents, the neutral must try to tell parties and affected nonparty participants. Anyone who gets that notice and does not offer to defend the neutral within 15 calendar days waives any objection. These rules do not block evidence that is otherwise discoverable, do not stop keeping records needed to write the agreement or order, allow sharing de-identified information for research with other agencies, allow limited use to settle disputes between a neutral and a participant, and communications between a neutral and a party that are protected here are also exempt 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