§ 574. Confidentiality
(a) Except as provided in subsections (d) and (e), a neutral in a dispute
resolution proceeding shall not voluntarily disclose or through discovery or compulsory process
be required to disclose any dispute resolution communication or any communication provided in
confidence to the neutral, unless--
(1) all parties to the dispute resolution proceeding and the neutral
consent in writing, and, if the dispute resolution communication was provided by a nonparty
participant, that participant also consents in writing;
(2) the dispute resolution communication has already been made
public;
(3) the dispute resolution communication is required by statute to be
made public, but a neutral should make such communication public only if no other person is
reasonably available to disclose the communication; or
(4) a court determines that such testimony or disclosure is necessary
to--
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health or safety, of sufficient magnitude
in the particular case to outweigh the integrity of dispute resolution proceedings in general by
reducing the confidence of parties in future cases that their communications will remain
confidential.
(b) A party to a dispute resolution proceeding shall not voluntarily
disclose or through discovery or compulsory process be required to disclose any dispute
resolution communication, unless--
(1) the communication was prepared by the party seeking disclosure;
(2) all parties to the dispute resolution proceeding consent in writing;
(3) the dispute resolution communication has already been made
public;
(4) the dispute resolution communication is required by statute to be
made public;
(5) a court determines that such testimony or disclosure is necessary
to--
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health and safety, of sufficient
magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in
general by reducing the confidence of parties in future cases that their communications will
remain confidential;
(6) the dispute resolution communication is relevant to determining the
existence or meaning of an agreement or award that resulted from the dispute resolution
proceeding or to the enforcement of such an agreement or award; or
(7) except for dispute resolution communications generated by the
neutral, the dispute resolution communication was provided to or was available to all parties to
the dispute resolution proceeding.
(c) Any dispute resolution communication that is disclosed in violation
of subsection (a) or (b), shall not be admissible in any proceeding relating to the issues in
controversy with respect to which the communication was made.
(d)(1) The parties may agree to alternative confidential procedures for
disclosures by a neutral. Upon such agreement the parties shall inform the neutral before the
commencement of the dispute resolution proceeding of any modifications to the provisions of
subsection (a) that will govern the confidentiality of the dispute resolution proceeding. If the
parties do not so inform the neutral, subsection (a) shall apply.
(2) To qualify for the exemption established under subsection (j), an
alternative confidential procedure under this subsection may not provide for less disclosure than
the confidential procedures otherwise provided under this section.
(e) If a demand for disclosure, by way of discovery request or other
legal process, is made upon a neutral regarding a dispute resolution communication, the neutral
shall make reasonable efforts to notify the parties and any affected nonparty participants of the
demand. Any party or affected nonparty participant who receives such notice and within 15
calendar days does not offer to defend a refusal of the neutral to disclose the requested
information shall have waived any objection to such disclosure.
(f) Nothing in this section 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.
(g) Subsections (a) and (b) shall have no effect on the information and
data that are necessary to document an agreement reached or order issued pursuant to a dispute
resolution proceeding.
(h) Subsections (a) and (b) shall not prevent the gathering of
information for research or educational purposes, in cooperation with other agencies,
governmental entities, or dispute resolution programs, so long as the parties and the specific
issues in controversy are not identifiable.
(i) Subsections (a) and (b) shall not prevent use of a dispute resolution
communication to resolve a dispute between the neutral in a dispute resolution proceeding and a
party to or participant in such proceeding, so long as such dispute resolution communication is
disclosed only to the extent necessary to resolve such dispute.
(j) A dispute resolution communication which is
between a neutral and a party and which may not be disclosed under this section shall also be
exempt from disclosure under section 552(b)(3).