5 U.S.C. § 573 — Neutrals

Page 160 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 572 ‘‘(c) DISQUALIFICATION OF REPRESENTATION OR ASSIST- ANCE.—Any agency that adopts regulations under sub- chapter IV of chapter 5 of title 5, United States Code, to permit representation or assistance by persons who are not attorneys shall review the rules of practice be- fore such agency to— ‘‘(1) ensure that any rules pertaining to disquali- fication of attorneys from practicing before the agen- cy shall also apply, as appropriate, to other persons who provide representation or assistance; and ‘‘(2) establish effective agency procedures for en- forcing such rules of practice and for receiving com- plaints from affected persons.’’ DEFINITIONS Pub. L. 101–552, § 10, Nov. 15, 1990, 104 Stat. 2747, as amended by Pub. L. 102–354, § 5(b)(6), Aug. 26, 1992, 106 Stat. 946, provided that: ‘‘As used in this Act [see Short Title note above], the terms ‘agency’, ‘administrative program’, and ‘alternative means of dispute resolution’ have the meanings given such terms in section 571 of title 5, United States Code (enacted as section 581 of title 5, United States Code, by section 4(b) of this Act, and redesignated as section 571 of such title by section 3(b) of the Administrative Procedure Technical Amend- ments Act of 1991 [Pub. L. 102–354]).’’ § 572. General authority (a) An agency may use a dispute resolution proceeding for the resolution of an issue in con- troversy that relates to an administrative pro- gram, if the parties agree to such proceeding. (b) An agency shall consider not using a dis- pute resolution proceeding if— (1) a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be ac- cepted generally as an authoritative prece- dent; (2) the matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be made, and such a pro- ceeding would not likely serve to develop a recommended policy for the agency; (3) maintaining established policies is of spe- cial importance, so that variations among in- dividual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions; (4) the matter significantly affects persons or organizations who are not parties to the proceeding; (5) a full public record of the proceeding is important, and a dispute resolution pro- ceeding cannot provide such a record; and (6) the agency must maintain continuing ju- risdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute reso- lution proceeding would interfere with the agency’s fulfilling that requirement. (c) Alternative means of dispute resolution au- thorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution tech- niques. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2739, § 582; renumbered § 572, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.) Editorial Notes CODIFICATION Section 572 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2257 of Title 7, Agriculture. PRIOR PROVISIONS A prior section 572 was renumbered section 592 of this title. AMENDMENTS 1992—Pub. L. 102–354 renumbered section 582 of this title as this section. § 573. Neutrals (a) A neutral may be a permanent or tem- porary officer or employee of the Federal Gov- ernment or any other individual who is accept- able to the parties to a dispute resolution pro- ceeding. A neutral shall have no official, finan- cial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral may serve. (b) A neutral who serves as a conciliator, fa- cilitator, or mediator serves at the will of the parties. (c) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of dis- pute resolution under this subchapter. Such agency or interagency committee, in consulta- tion with other appropriate Federal agencies and professional organizations experienced in matters concerning dispute resolution, shall— (1) encourage and facilitate agency use of al- ternative means of dispute resolution; and (2) develop procedures that permit agencies to obtain the services of neutrals on an expe- dited basis. (d) An agency may use the services of one or more employees of other agencies to serve as neutrals in dispute resolution proceedings. The agencies may enter into an interagency agree- ment that provides for the reimbursement by the user agency or the parties of the full or par- tial cost of the services of such an employee. (e) Any agency may enter into a contract with any person for services as a neutral, or for train- ing in connection with alternative means of dis- pute resolution. The parties in a dispute resolu- tion proceeding shall agree on compensation for the neutral that is fair and reasonable to the Government. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2739, § 583; renumbered § 573, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 7(b), Oct. 19, 1996, 110 Stat. 3872.) Editorial Notes CODIFICATION Section 573 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2258 of Title 7, Agriculture. PRIOR PROVISIONS A prior section 573 was renumbered section 593 of this title. Page 161 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 574 AMENDMENTS 1996—Subsec. (c). Pub. L. 104–320, § 7(b)(1), added sub- sec. (c) and struck out former subsec. (c) which related to power of Administrative Conference of the United States to establish and utilize standards for neutrals and to enter into contracts for services of neutrals. Subsec. (e). Pub. L. 104–320, § 7(b)(2), struck out ‘‘on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual’’ after ‘‘contract with any person’’. 1992—Pub. L. 102–354 renumbered section 583 of this title as this section. § 574. Confidentiality (a) Except as provided in subsections (d) and (e), a neutral in a dispute resolution proceeding shall not voluntarily disclose or through dis- covery or compulsory process be required to dis- close any dispute resolution communication or any communication provided in confidence to the neutral, unless— (1) all parties to the dispute resolution pro- ceeding 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 con- fidence 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 dis- covery or compulsory process be required to dis- close any dispute resolution communication, un- less— (1) the communication was prepared by the party seeking disclosure; (2) all parties to the dispute resolution pro- ceeding 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 con- fidence 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 re- sulted from the dispute resolution proceeding or to the enforcement of such an agreement or award; or (7) except for dispute resolution communica- tions generated by the neutral, the dispute resolution communication was provided to or was available to all parties to the dispute res- olution proceeding. (c) Any dispute resolution communication that is disclosed in violation of subsection (a) or (b), shall not be admissible in any proceeding re- lating 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 neu- tral. Upon such agreement the parties shall in- form the neutral before the commencement of the dispute resolution proceeding of any modi- fications 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 proce- dures otherwise provided under this section. (e) If a demand for disclosure, by way of dis- covery request or other legal process, is made upon a neutral regarding a dispute resolution communication, the neutral shall make reason- able efforts to notify the parties and any af- fected nonparty participants of the demand. Any party or affected nonparty participant who re- ceives 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 dis- pute 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 pro- ceeding. (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 reso- lution programs, so long as the parties and the specific issues in controversy are not identifi- able. (i) Subsections (a) and (b) shall not prevent use of a dispute resolution communication to re- solve a dispute between the neutral in a dispute resolution proceeding and a party to or partici- pant 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). (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2740, § 584; renumbered § 574, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 3, Oct. 19, 1996, 110 Stat. 3870.)