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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: December 29, 2000

FROM: Barry McVay, CPCM

SUBJECT: Department of Justice; Confidentiality in Federal Alternative Dispute Resolution (ADR) Programs

SOURCE: Federal Register, December 29, 2000, Vol. 65, No. 251, page 83085

AGENCIES: Department of Justice (DOJ), Federal Alternative Dispute Resolution Council

ACTION: Notice

SYNOPSIS: DOJ is publishing a document prepared by the Federal Alternative Dispute Resolution Council titled "Confidentiality in Federal Alternative Dispute Resolution Programs." This document contains detailed guidance on the nature and limits of confidentiality in ADR programs and also includes guidelines for a statement on these issues that federal neutrals may use in ADR proceedings.

EDITOR'S NOTE: For more on the notice of availability of this and another ADR-related document, "Evaluation of Federal Alternative Dispute Resolution Programs," for comment, see the October 4, 2000, FEDERAL CONTRACTS DISPATCH "Department of Justice; Federal Alternative Dispute Resolution Programs."

ADDRESSES: Send comments to Jeffrey M. Senger, Deputy Senior Counsel for Dispute Resolution, United States Department of Justice, 950 Pennsylvania Ave. NW, Room 4328, Washington, DC 20530.

SUPPLEMENTAL INFORMATION: The government and the private sector have been using ADR techniques with increasing frequency in recent years because it is usually quicker, cheaper, and less adversarial than litigation. In ADR, parties meet with each other under the guidance of a neutral professional, and together they talk about the problems that led to the complaint and often find creative, effective solutions that are agreeable to all sides.

One of the provisions of the Administrative Dispute Resolution Act of 1996 (ADR Act) (Public Law 104-320) called for the establishment of an interagency committee to assist agencies in the use of ADR. The Federal ADR Steering Committee, a group of subject matter experts from federal agencies with active ADR programs, prepared two draft documents intended to help agencies use ADR and to evaluate the effectiveness of agencies' ADR programs. The Federal ADR Steering Committee sought comments on these documents on October 4, 2000.

The final document published today, "Confidentiality in Federal Alternative Dispute Resolution Programs," is the product of many suggestions submitted on the draft document that addressed confidentiality issues. The comments primarily fell into three categories:

  1. The Relationship Between the ADR Act and Other Authorities: There was great concern about the interplay of the ADR Act's confidentiality provisions with federal "access" statutes that provide federal entities authority to seek access to certain classes of information. Some commenters believe that threats of physical harm and statements concerning ongoing or future criminal activity should not be confidential, and others stated that federal statutes providing access for government investigatory agencies should override the ADR Act's confidentiality guarantees. On the other hand, several commenters argued that the ADR Act prohibitions on disclosure take precedence over any other federal statute, otherwise the participants will not be forthcoming. "There does not appear to be an easy answer to the tension between these authorities," says the Council. "While the ADR Act's confidentiality provisions are clear, the access provisions of other statutes are equally clear." However, the Council observes that "the circumstances when confidentiality might be challenged are, based on our experience, rare. The Council believes that there are opportunities for ADR programs and federal requesting entities to establish good working relationships such that disputes over demands for disclosure of confidential communications can be minimized. This report continues to endorse a cooperative approach of this nature."

  2. The Confidentiality of Statements Made in Joint Session: Many commenters noted that the draft report stated there is no confidentiality protection for a party's dispute resolution communications that are available to all other parties, such as comments made or documents shared in joint session. The commenters stated that the guidance on this issue differs from traditional ADR practices and party expectations regarding confidentiality, and were of the opinion that this interpretation could reduce the utility of joint sessions. The ADR Council points to the ADR Act itself, which states that there is no confidentiality protection if "the dispute resolution communication was provided to or was available to all parties in the dispute resolution proceeding" (5 U.S.C. 574(b)(7)). The ADR Council says "the language of the statute is difficult to overcome...Further, the Act's definition of dispute resolution communication contains no exception for oral statements. Indeed, it explicitly includes 'any oral or written communication prepared for the purposes of a dispute resolution proceeding'...The Council does recognize that this provision could hinder a party's candor in a joint session, and therefore the Guidance suggests that parties address this issue through the use of a contract. Confidentiality agreements are a standard practice in many ADR contexts, and their use is encouraged in federal dispute resolution processes where confidentiality of party-to-party communications is desired."

  3. The Model Confidentiality Statement for Use by Neutrals: The draft guidance contained a model statement on confidentiality for neutrals to read to parties at the beginning of a mediation. Many commenters suggested that provisions should be added to the statement to make sure parties were made aware of additional possible confidentiality exceptions. Others stated that the statement was already too complex and potentially chilling. "The Council appreciates the difficulty in making an opening statement complete enough to put parties on notice of important issues, while not making it so exhaustive that it discourages participation in ADR. The Council acknowledges that a well-drafted statement should accommodate all of these concerns as well as possible...In response to these comments, the Guidance now includes a set of guidelines for neutrals to use in developing their own statements on confidentiality, appropriate to the situation." In addition, the guidance also includes an example of a confidentiality statement which would should be tailored to fit the needs of each particular case. "This statement refers to a mediation, because mediation is the most common ADR process in the federal government."

The guidance is presented in four sections:

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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