agreement made easier
Confidentiality Protection in a Federal Alternative Dispute Resolution
Proceeding
Quick Reference Guide
October 11, 2017
This is a "Quick Reference Guide" on confidentiality protections for parties engaged in an
alternative dispute resolution (ADR) process, with EPA; using a neutral third-party. The guide
identifies the types of communications that are protected by the Administrative Dispute
Resolution Act of 1996 (ADR Act), the neutral and parties' obligations of non-disclosure, when
FOIA Exemption 3 can be applied, and how to contract for additional confidentiality protection.
Overview
Confidentiality is a critical component of a successful ADR process. Guarantees of
confidentiality allow parties to speak openly without the fear that statements made during the
ADR process will be disclosed to others. There are a number of statutes and mechanisms that
provide confidentiality protection. Among them, the ADR Act provides confidential protection
to oral and written communications made during a federal ADR proceeding.
Limitations on Confidentiality Protections for Communications Between Parties
The confidentiality provisions of the ADR Act primarily protect communications between the
parties and the neutral.
• The ADR Act forbids neutrals from disclosing any documents prepared by or for the
neutral and from voluntarily testifying as a witness regarding the communications made
during the ADR process.
• The ADR Act states that the neutral shall not be required to disclose by compulsory
process such communications except in narrowly defined circumstances.
• The ADR Act does not provide confidentiality protections for documents shared
directly by a party with all other parties to the process. (The parties may, however,
grant the neutral discretion to share documents with other parties. Documents shared
by the neutral are protected by the ADR Act's confidentiality provisions).
• The ADR Act does not provide confidentiality protections for direct communications
between parties or for statements made during the ADR process when the neutral and
all parties are present in joint session.
CPRC
Conflict Prevention and Resolution Center (202)564-2922 | www.epa.gov/adr
-------
Confidentiality Quick Reference
May Parties Agree to Alter the ADR Act Confidentiality Terms?
The ADR Act expressly permits parties to agree to alternative confidentiality protections for
disclosures by themselves or by the neutral, as long as all parties and the neutral agree in
writing to the alternative provisions in advance.
• For example, parties may agree to hold as confidential among themselves
communications not protected by the ADR Act, such as information available to all
parties in joint session.
• However, any written communication protected by an agreement more stringent than
the ADR Act may be vulnerable to disclosure to third parties through FOIA and other
compulsory legal processes. (See below how written negotiation communications could
be protected by Federal Rule of Evidence 408).
How to Contract for Additional Confidentiality Protection
Parties can agree to increase or waive confidentiality protections in a written agreement.
• Prior to entering an ADR process, especially in the context of ongoing or likely
litigation, it is recommended that participants sign an ADR Agreement.
o The ADR Agreement is a document signed by all parties, prior to entering an ADR
process, that establishes the parties' understanding of the process.
• The parties' agreement regarding confidentiality can be captured either in a written
confidentiality agreement or included as a provision of the ADR Agreement.
• To allow parties to speak openly during the ADR process, it is recommended that
parties agree to hold confidential oral and written communications made during the
ADR process when the neutral and all parties are present. Below is a sample
confidentiality clause:
Confidentiality: To promote frank and productive discussion, the parties agree that the ADR
process is confidential. The parties agree not to disclose oral and written communications made
during the ADR process, including settlement terms, proposals, offers, or other statements,
whether made privately to the neutral or when all parties are present.
Confidentiality Under the ADR Act
The ADR Act applies if an ADR process is used to address an issue in controversy related to a
federal administrative program.
What is an ADR Process?
Any process in which (a) means of dispute resolution other than litigation are used to resolve an
issue in controversy, (b) a neutral is used, and, (c) specified parties participate. 5 U.S.C. 571(6).
Intake and convening are included in the process.
Page 2 of 5
-------
Confidentiality Quick Reference
When is Someone Serving as a Neutral?
The ADR Act provides three main criteria that must be met: (a) the person must be acting to
assist the parties to resolve a specific dispute; (b) the person must be accepted by all parties;
and (c) the person must have no conflict of interest with respect to the issues or parties (except
as disclosed and not objected to by the parties).
What does the ADR Act Protect?
The ADR Act protects "dispute resolution communications" and "communications made in
confidence" between the neutral and parties.
• Dispute Resolution Communications: Statements, including oral, telephone, written, or
electronic, made during the process by a party, a non-party participant, or the neutral,
or documents submitted to or prepared by the neutral, with the exception of written
agreements to enter into the ADR process and the final written settlement agreement.
5 U.S.C. 571(5).
• Communication Made in Confidence. Communications, including oral, written,
nonverbal, or electronic, with a neutral that are provided with the express intent that it
not be disclosed or under circumstances that create a reasonable expectation by the
source of nondisclosure. 5 U.S.C. 571(7).
What Types of ADR Communications may be Disclosed by a Neutral or Party?
1. Parties may disclose their own communications.
2. Parties may disclose statements made by other parties when all parties are present in
joint session. This includes settlement offers, though settlement offers may be
inadmissible in court. (See above in "How to Contract for Additional Confidentiality
Protection" how parties can agree to protect joint session communications).
3. Some dispute resolution communications are required to be made public by statute.
For example, regardless of confidentiality agreement clauses, minutes and records of a
negotiated rulemaking committee are required to be publicly available, 5 U.S.C. 566.
Proposed CERCLA settlements must be published in the Federal Register. 42 U.S.C.
9622(i). In these cases, the neutral may disclose the communications only if the neutral
is the sole person reasonably available to do so. See also the FOIA discussion below.
4. Communications which occur or are exchanged during an ADR process but were
produced for an entirely different purpose, and are not otherwise protected from
disclosure, such as a document required to be prepared by regulation or discussions
regarding an unrelated subject.
5. When all parties and the neutral consent to a disclosure in writing, and if applicable, a
non-party who provided confidential communication also consents.
6. When the dispute resolution communication has already been made public.
7. When a court determines that disclosure is necessary to prevent a manifest injustice,
establish a violation of law, or prevent harm to the public health or welfare, and that
these concerns are of sufficient magnitude to outweigh the integrity of dispute
Page 3 of 5
-------
Confidentiality Quick Reference
resolution proceedings in general by reducing the confidence of parties in future cases
that their communications will remain confidential.
What are the Parties' Obligation of Non-Disclosure?
Unless the parties agree otherwise:
• Materials provided to the neutral in private caucus may not be disclosed either by the
neutral, or by parties other than the party providing the materials.
• Parties may not disclose communications made by a neutral, even if the
communications were made when all parties were present.
What is a Neutral's Obligation of Non-Disclosure?
A neutral (including EPA employees serving as neutrals) generally may not voluntarily disclose
or be required to disclose by compulsory process any dispute resolution communications or any
communication provided by the party to the neutral in confidence.
• Exceptions to this duty are enumerated above ("What Types of Communications May Be
Disclosed by a Neutral or Party" #3-7).
• Depending on the jurisdiction a mediator's local codes of ethics may include additional
duties of non-disclosure.
Do the Federal Rules of Evidence provide Additional Confidentiality Protections?
Yes, Federal Rule of Evidence 408 generally prohibits the admission into evidence of any
communication made by a party during a negotiation regarding an offer of settlement or
compromise.
Does the ADR Act Provide an Exemption from Freedom of Information Act Requests?
Yes, the ADR Act contains an express prohibition covering the release of confidential dispute
resolution communication between a neutral and a party or parties. 5 U.S.C. 574(j). In
responding to a FOIA request, the Agency may assert FOIA Exemption 3, which allows the
withholding of information prohibited by another federal statute, as a basis to withhold
disclosure of any confidential communication in the possession of an internal neutral.
• This protection from FOIA does not apply to communications not protected by the ADR
Act, such as written communications shared directly by a party with all other parties to
the process even if the parties have agreed in writing that such communications are
confidential.
May the Neutral in an Internal EPA ADR Process Disclose Confidential Dispute
Resolution Communications to EPA Personnel who are not Directly Involved in a
Dispute?
Generally, no. Neutrals in EEO or other internal EPA cases may not disclose confidential
dispute resolution communication to any uninvolved EPA personnel, including
management. However, protected communications may be disclosed in two situations:
Page 4 of 5
-------
Confidentiality Quick Reference
1. Confidential communication may be disclosed to another person if that person is
serving as a neutral for the same parties in the same matter.
2. Tentative settlements may be disclosed to another EPA employee for the limited
purpose of obtaining legal review or management feedback and approval.
Additional Guidance for Specific Situations
Additional guidance on the application of the confidentiality requirements of the ADR Act or
court rules to specific situations may be obtained from the EPA ADR Counsel, ADR Law Office,
Office of General Counsel. (Contact information at https://www.epa.gov/adr/epa-alternative-
dispute-resolution-contacts).
Page 5 of 5
------- |