WASHINGTON, D.C.–In mid-October, Congress passed the Alternative Dispute Resolution Act of 1998, which would require federal district courts to authorize the use of alternative dispute resolution in all civil actions and to encourage litigants to use the ADR process.
The bill specifically provides for the “confidentiality of the alternative dispute resolution processes” by requiring each district court to implement a local rule prohibiting the disclosure of confidential dispute resolution communications. The bill also requires that each district court institute a local rule which will provide that the contents of any arbitration award be sealed until the district court enters final judgment in the action or the action is otherwise terminated.
In May 1995, the Reporters Committee argued against a similar proposal before the Administrative Conference of the United States, stating that the First Amendment, common law and statutory rights of access often subject court materials to disclosure, and luring parties with promises of ordinarily unavailable confidentiality is an inappropriate way to encourage administrative dispute resolution.
The bill would also require each district court to devise and implement its own ADR program by local rule. Courts that already have ADR programs in place will be required to examine the effectiveness of their programs and to make improvements that are consistent with the legislative measures.
Under the bill, courts would have to provide litigants with at least one alternative to going to trial, including, but not limited to, mediation, early neutral evaluation, mini-trials, and arbitration. Also, each district court would be required to designate an employee or judicial officer who is knowledgeable in ADR practices to implement and evaluate its ADR program. That person could be in charge of recruiting, screening, and training attorneys to serve as neutrals and arbitrators in the ADR program.
The House approved H.R. 3528 on April 21 and the Senate subsequently approved the bill on October 7. The measure was presented to President Clinton for signature on October 21. (H.R. 3528)