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When mediating with an agency of the Federal Government, keep in mind that communications in joint sessions are not confidential. If you wish to protect the confidentiality of the session, include a clause in your agreement to mediate that expands confidentiality protection.

The Federal Alternative Dispute Resolution Counsel recently clarified the level of confidentiality contesting parties may expect while mediating with any branch or agency of the Federal Government. With all parties present in joint session no confidentiality attaches to anything spoken or presented to the other side. To avoid chilling the candor of these sessions the parties should raise the level of confidentiality through an agreement. A properly worded agreement signed before the mediation begins may protect the confidentially of the entire session. Still, information obtainable through the Freedom of Information Act may not remain confidential.

United States Arbitration and Mediation, Midwest, Inc. uses the following language to assure the maximum degree of confidentiality in our mediations.

“If any party is a Federal Agency, all parties agree that the applicability of the ‘Confidentiality in Federal Alternative Dispute Resolution Programs’ as published in the Federal Register/Volume 65, No. 251 on Friday, December 29, 2000, are waived, except as to the applicability of the Freedom of Information Act.”

So our advice is don�t leave home without it. A strong confidentiality clause, that is!


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