DOL Home > OALJ Home > Air Force Mediation Handbook - Confidentiality
Excerpt from Chapter V, C of
Air Force Mediation Best Practices
For Resolving Civilian Personnel Workplace Disputes (1999)
[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.]
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.
SeeAttachment 2, Paragraph B. 2. This provision is
authorized by 5 U.S.C. §§ 574 (d), seeAttachment 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.
[ENDNOTES]
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.