[Note: This excerpt from the Air Force Mediation Guidance Handbook describes some of the limits of confidentiality in administrative alternative resolution. Non-substantive formatting changes have been made. The portion of the discussion about the Air Force's agreement to defend a mediator against discovery requests, and the direction to contact the Air Force Central Labor Law Office in such cases, of course, does not apply to Department of Labor settlement judge mediations.]

a) Confidentiality⁸ : There is a lot of confusion surrounding what is or can be kept confidential in a mediation. By confidential, we mean information that a mediator or a party cannot, by law, voluntarily disclose to anyone or, if disclosed, cannot be admitted into evidence in any future legal proceeding. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870. What is a mediator or party required to keep confidential during a mediation session? The answer is as follows:

• Any oral or written communication prepared for the purposes of a mediation, including any memoranda, notes, or work product of the mediator, parties, or nonparty participant(s), that is offered by a party to the mediator in confidence, is, subject to the exceptions listed below, protected by law from disclosure or use in a future proceeding. See §§ 574(a) & (b). The point is that Congress recognized that for mediation to be effective, confidential caucuses are essential. The ADRA''s confidentiality provisions are narrowly tailored and make most things said privately to the mediator during a mediation confidential. There are, however, limits on what can and should be kept confidential. Specifically, the following are NOT confidential:
  • Agreements to Mediate (Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870, §§ 571(5) & 574) (hereinafter ADRA), See Attachment 6;

  • Settlement Agreements reached as a result of an ADR proceeding. Id., § 571(5)(Note: the parties can make arrangements to limit the circulation of any settlement agreement, and other laws or regulations may provide additional confidentiality protections);

  • Information that is required by statute to be made public

    Id. §§ 574(a)(3) & (b)(4))(For example, in response to a Congressional Subpoena);

  • "Nothing [in the ADRA] 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." Id., § 574(f);

  • Even if protected by the confidentiality provisions of the ADRA, a court may require disclosure of such information if it is necessary to prevent a manifest injustice, helps establish a violation of law, or prevents harm to the public health or safety Id. §§ 574(a)(4) & (b)(5);

  • Confidential dispute resolution communications can be disclosed if the parties to the dispute and the mediator consent in writing. Id. § 574(a)(1) & (b)(2)(Note: If the confidential dispute resolution communication was provided by a nonparty participant, that participant also must consent in writing.);

  • A party may reveal its own communications. (5 U.S.C. §574(b)(1)); and

  • A party may reveal another party's communications disclosed to all parties. (5 U.S.C. §574(b)(7)).

The Air Force will agree to defend anyone who mediates an Air Force dispute against any discovery or Freedom of Information Act request that is related to information about an ADR proceeding. This is extremely important as the ADRA contains a provision, 5 U.S.C. Sec. 574(e), that requires a party to agree to defend a mediator against a discovery request within 15 days or it waives all the ADRA''s confidentiality protections. The Air Force standard mediation agreement agrees, in writing, to defend a mediator against all such discovery requests.

This explains why the attached Sample Mediation Memorandum states that:

If anyone asks you to provide information about what was discussed in this mediation session, it is very important that you say nothing and that you immediately notify the Air Force Central Labor Law Office (CLLO) at DSN 426-9158 or (703) 696-9158 and they will provide guidance on how to respond.

See Attachment 2, Paragraph B. 2. This provision is authorized by 5 U.S.C. §§ 574 (d), see Attachment 6, and is vital to protect the integrity of the mediation process.

One last note about confidentiality. As already discussed, the ADRA of 1996 prohibits mediators and the parties from voluntarily disclosing confidential information unless required by law or ordered by a court. Mediators/case intake officials should contact CLLO if they seek to disclose information obtained during the mediation process that may be considered by one or both parties to be a confidential communication.

⁸ The Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870, became effective on October 19, 1996 (the ADRA). See Attachment 6. The ADRA has extensive confidentiality provisions that provide confidentiality protections to mediators and the parties engaged in mediation. While it may be some time before the publishers of the United States Code (U.S.C.) make the necessary changes, a copy of the ADRA''s provisions as they will be codified in the U.S.C. is appended as Attachment 6. For ease of understanding, we therefore make reference to the ADRA provisions as they will appear in the U.S.C. Accordingly, please be advised that if you look at these sections in the published U.S.C. today, they may not reflect the new provisions of the ADRA.