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The
Administrative Dispute Resolution Act of 1996 (ADRA) vides for the
confidentiality of the mediation process as follows:
a. Mediator. A mediator may not disclose confidential
information, unless:
(1) all parties agree in writing to disclose the
information;
(2) the information has already been made public;
(3) the disclosure of the information is required by
law, or
(4) a court determines that disclosure of the
information is necessary to:
(a) present manifest
injustice;
(b) help establish violation
of a law, or
(c) present serious harm to
public health or safety.
b. Parties. A party to the mediation may not disclose
confidential information, unless:
(1) the party prepared the information;
(2) all parties agree in writing to disclose the
information;
(3) the information has already been made public;
(4) the disclosure of the information is required by law;
(5) a court determines that disclosure of the
information is necessary to:
(a) present manifest
injustice;
(b) help establish violation
of a law, or
(c) present serious harm to
public health or safety.
(6) the disclosure of the information is relevant
to finding understanding, or
enforcing a
resolution agreement
resulting from mediation, or
(7) except for information communicated by the
mediator, the information was
provided to, or
available to all parties.
c. Violations. Any confidential information disclosed in
violation of ADRA and this agreement shall not be admissible in any
administrative (e.g. EEOC hearing) or judicial (e.g. suit in the U.S.
District Court) proceeding related to the issues raised in mediation.
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d. Alternative Confidentiality Agreement. The parties may agree to use different
procedures for disclosure of confidential information by the mediator. In order to use different procedures, the
parties must make changes before the mediation begins. Unless the parties inform the mediator of
a different set of procedures, section “a” will apply.
e. Discovery in a Judicial
Proceeding. If the mediator is
asked to disclose confidential information communicated during the mediation
process as part of a judicial proceeding, the mediator will make reasonable
efforts to notify the parties (and/or affected nonparty participant) of the
request. The parties (and/or affected
nonparty participant) have 15 calendar days to respond to the mediator and
offer to defend the mediator’s refusal to disclose the confidential
information. If the parties (and/or
affected nonparty participant) do not reply to the mediator within 15
calendar days, they have waived their rights to object to disclosure of
confidential information by the mediator.
f. Otherwise Discoverable
Information. Information communicated in mediation is not protected from
disclosure if it is otherwise discoverable.
g. Performing Resolution Agreement. Sections “a” and “b” will not apply when
necessary to comply with a resolution agreement reached as a result of
mediation to document compliance with such agreement.
h. Research. Information about mediation may be
gathered for research or educational purposes so long as the parties and
specific issues mediated are not identifiable.
i. Dispute with Mediator. Sections
“a” and “b” do not prevent the use of alternative dispute resolution
process to resolve a dispute with the mediator provided that release of
confidential information is only released to the extent necessary to resolve
the conflict with the mediator.
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