Protection of Neutrals

The ADRA of 1996 provides significant protection for neutrals.

Protection from the Duty to Speak
Some statutes impose mandatory reporting requirements.  For example, 28 USC 535 imposes a reporting requirement relating to “violations of Federal criminal law involving Government officers and employees” when information is “received in a department or agency of the executive branch.”  It is not hard to envision the situation wherein a neutral employed by an agency receives such information, yet feels constrained by his or her confidentiality obligations found in the ADRA of 1996, at 5 USC 574(a). 

The ADRA of 1996 recognizes that such statutes exist and provides an express exemption to the confidentiality obligation, with a twist.  Specifically, it imposes the obligation to avoid disclosing information, but provides an exception containing its own exception:

(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—

. . .

    • (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

    . . .

5 USC 574(a) (underline added).  As the underlined text reveals, where another “reasonably available” person has the same information and obligation to disclose, the neutral “should” not need to disclose it.  

Protection from Compulsory Process (Subpoenas, Summons, etc.)
When an ADR process does not resolve a dispute, one party might be tempted to call the neutral as a witness or demand access to his or her notes.  A mediator can invoke the protection afforded under 5 USC 574, but who pays the tab for avoiding the disclosure?  The answer is the parties.  The statute provides:
(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.

5 USC 574(e).  

Protection from FOIA Requests
The Freedom of Information Act (FOIA) allows the public to request records from agencies, but the ADRA of 1996 expressly provides that dispute resolutions communications between a neutral and a party that are confidential under the ADRA of 1996 are exempt from disclosure under FOIA.  See 5 USC 574(j).  
Protection in Disputes with the Parties
A neutral is not fully bound by his or her confidentiality obligations if there is a dispute with a party or participant in the ADR process.  The ADRA of 1996 states:
(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.

5 USC 574(i).  

Protection from other Sources
The contract engaging the neutral or the parties’ own ADR agreement may provide additional protections to the neutral.  The Armed Services Board of Contract Appeals, for example, requires the parties to execute a mandatory indemnity clause prior to its consent to conduct an ADR process.