§ 577. Arbitrators

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1990

   Administrative Dispute Resolution Act

   Pub. L. 101–552 § 4(b) · 104 Stat. 2736

   Enacted · 5 U.S.C. § 577

   Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 587

   Source evidence

   Code source credit
   Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 587

   Enacted provision · exact public law section
   (b) Alternative Means of Dispute Resolution.— Chapter 5 of title 5, United States Code, is amended by adding at the end the following new subchapter: “SUBCHAPTER IV— ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS “§ 581. Definitions “For the purposes of this subchapter, the term— “(1) ‘agency’ has the same meaning as in section 551(1) of this title; “(2) ‘administrative program’ includes a Federal function which involves protection of the public interest and the determination of rights, privileges, and obligations of private persons through rule making, adjudication, licensing, or investigation, as those terms are used in subchapter II of this chapter; “(3) ‘alternative means of dispute resolution’ means any procedure that is used, in lieu of an adjudication as defined in section 551(7) of this title, to resolve issues in controversy, including but not limited to, settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, or any combination thereof; “(4) ‘award’ means any decision by an arbitrator resolving the issues in controversy; “(5) ‘dispute resolution communication’ means any oral or written communication prepared for the purposes of a dispute resolution proceeding, including any memoranda, notes or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral award reached as a result of a dispute resolution proceeding, is not a dispute resolution communication; “(6) ‘dispute resolution proceeding’ means any process in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a neutral is appointed and specified parties participate; “(7) ‘in confidence’ means, with respect to information, that the information is provided— “(A) with the expressed intent of the source that it not be disclosed; or “(B) under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed; “(8) ‘issue in controversy’ means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement between the agency and persons who would be substantially affected by the decision but shall not extend to matters specified under the provisions of sections 2302 and 7121(c) of title 5; “(9) ‘neutral’ means an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy; “(10) ‘party’ means— “(A) for a proceeding with named parties, the same as in section 551(3) of this title; and “(B) for a proceeding without named parties, a person who will be significantly affected by the decision in the proceeding and who participates in the proceeding; “(11) ‘person’ has the same meaning as in section 551(2) of this title; and “(12) ‘roster’ means a list of persons qualified to provide services as neutrals. “§ 582. General authority “(a) An agency may use a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding. “(b) An agency shall consider not using a dispute 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 accepted generally as an authoritative precedent; “(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 proceeding would not likely serve to develop a recommended policy for the agency; “(3) maintaining established policies is of special importance, so that variations among individual 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 proceeding cannot provide such a record; and “(6) the agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the agency’s fulfilling that requirement. “(c) Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques. “§ 583. Neutrals “(a) A neutral may be a permanent or temporary officer or employee of the Federal Government or any other individual who is acceptable to the parties to a dispute resolution proceeding. A neutral shall have no official, financial, 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, facilitator, or mediator serves at the will of the parties. “(c) In consultation with the Federal Mediation and Conciliation Service, other appropriate Federal agencies, and professional organizations experienced in matters concerning dispute resolution, the Administrative Conference of the United States shall— “(1) establish standards for neutrals (including experience, training, affiliations, diligence, actual or potential conflicts of interest, and other qualifications) to which agencies may refer; “(2) maintain a roster of individuals who meet such standards and are otherwise qualified to act as neutrals, which shall be made available upon request; “(3) enter into contracts for the services of neutrals that may be used by agencies on an elective basis in dispute resolution proceedings; and “(4) develop procedures that permit agencies to obtain the services of neutrals on an expedited 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 agreement that provides for the reimbursement by the user agency or the parties of the full or partial cost of the services of such an employee. “(e) Any agency may enter into a contract with any person on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual for services as a neutral, or for training in connection with alternative means of dispute resolution. The parties in a dispute resolution proceeding shall agree on compensation for the neutral that is fair and reasonable to the Government. “§ 584. 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 information concerning 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 information concerning 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) 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) 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. “(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) This section shall not be considered a statute specifically exempting disclosure under section 552(b)(3) of this title. “§ 585. Authorization of arbitration “(a) (1) Arbitration may be used as an alternative means of dispute resolution whenever all parties consent. Consent may be obtained either before or after an issue in controversy has arisen. A party may agree to— “(A) submit only certain issues in controversy to arbitration; or “(B) arbitration on the condition that the award must be within a range of possible outcomes. “(2) Any arbitration agreement that sets forth the subject matter submitted to the arbitrator shall be in writing. “(3) An agency may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit. “(b) An officer or employee of an agency may offer to use arbitration for the resolution of issues in controversy, if such officer or employee— “(1) has authority to enter into a settlement concerning the matter; or “(2) is otherwise specifically authorized by the agency to consent to the use of arbitration. “§ 586. Enforcement of arbitration agreements “An agreement to arbitrate a matter to which this subchapter applies is enforceable pursuant to section 4 of title 9, and no action brought to enforce such an agreement shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party. “§ 587. Arbitrators “(a) The parties to an arbitration proceeding shall be entitled to participate in the selection of the arbitrator. “(b) The arbitrator shall be a neutral who meets the criteria of section 583 of this title. “§ 588. Authority of the arbitrator “An arbitrator to whom a dispute is referred under this subchapter may— “(1) regulate the course of and conduct arbitral hearings; “(2) administer oaths and affirmations; “(3) compel the attendance of witnesses and production of evidence at the hearing under the provisions of section 7 of title 9 only to the extent the agency involved is otherwise authorized by law to do so; and “(4) make awards. “§ 589. Arbitration proceedings “(a) The arbitrator shall set a time and place for the hearing on the dispute and shall notify the parties not less than 5 days before the hearing. “(b) Any party wishing a record of the hearing shall— “(1) be responsible for the preparation of such record; “(2) notify the other parties and the arbitrator of the preparation of such record; “(3) furnish copies to all identified parties and the arbitrator; and “(4) pay all costs for such record, unless the parties agree otherwise or the arbitrator determines that the costs should be apportioned. “(c) (1) The parties to the arbitration are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing. “(2) The arbitrator may, with the consent of the parties, conduct all or part of the hearing by telephone, television, computer, or other electronic means, if each party has an opportunity to participate. “(3) The hearing shall be conducted expeditiously and in an informal manner. “(4) The arbitrator may receive any oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator. “(5) The arbitrator shall interpret and apply relevant statutory and regulatory requirements, legal precedents, and policy directives. “(d) No interested person shall make or knowingly cause to be made to the arbitrator an unauthorized ex parte communication relevant to the merits of the proceeding, unless the parties agree otherwise. If a communication is made in violation of this subsection, the arbitrator shall ensure that a memorandum of the communication is prepared and made a part of the record, and that an opportunity for rebuttal is allowed. Upon receipt of a communication made in violation of this subsection, the arbitrator may, to the extent consistent with the interests of justice and the policies underlying this subchapter, require the offending party to show cause why the claim of such party should not be resolved against such party as a result of the improper conduct. “(e) The arbitrator shall make the award within 30 days after the close of the hearing, or the date of the filing of any briefs authorized by the arbitrator, whichever date is later, unless— “(1) the parties agree to some other time limit; or “(2) the agency provides by rule for some other time limit. “§ 590. Arbitration awards “(a) (1) Unless the agency provides otherwise by rule, the award in an arbitration proceeding under this subchapter shall include a brief, informal discussion of the factual and legal basis for the award, but formal findings of fact or conclusions of law shall not be required. “(2) The prevailing parties shall file the award with all relevant agencies, along with proof of service on all parties. “(b) The award in an arbitration proceeding shall become final 30 days after it is served on all parties. Any agency that is a party to the proceeding may extend this 30-day period for an additional 30-day period by serving a notice of such extension on all other parties before the end of the first 30-day period. “(c) The head of any agency that is a party to an arbitration proceeding conducted under this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to the proceeding before the award becomes final by serving on all other parties a written notice to that effect, in which case the award shall be null and void. Notice shall be provided to all parties to the arbitration proceeding of any request by a party, nonparty participant or other person that the agency head terminate the arbitration proceeding or vacate the award. An employee or agent engaged in the performance of investigative or prosecuting functions for an agency may not, in that or a factually related case, advise in a decision under this subsection to terminate an arbitration proceeding or to vacate an arbitral award, except as witness or counsel in public proceedings. “(d) A final award is binding on the parties to the arbitration proceeding, and may be enforced pursuant to sections 9 through 13 of title 9. No action brought to enforce such an award shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party. “(e) An award entered under this subchapter in an arbitration proceeding may not serve as an estoppel in any other proceeding for any issue that was resolved in the proceeding. Such an award also may not be used as precedent or otherwise be considered in any factually unrelated proceeding, whether conducted under this subchapter, by an agency, or in a court, or in any other arbitration proceeding. “(f) An arbitral award that is vacated under subsection (c) shall not be admissible in any proceeding relating to the issues in controversy with respect to which the award was made. “(g) If an agency head vacates an award under subsection (c), a party to the arbitration (other than the United States) may within 30 days of such action petition the agency head for an award of attorney fees and expenses (as defined in section 504(b)(1)(A) of this title) incurred in connection with the arbitration proceeding. The agency head shall award the petitioning party those fees and expenses that would not have been incurred in the absence of such arbitration proceeding, unless the agency head or his or her designee finds that special circumstances make such an award unjust. The procedures for reviewing applications for awards shall, where appropriate, be consistent with those set forth in subsection (a)(2) and (3) of section 504 of this title. Such fees and expenses shall be paid from the funds of the agency that vacated the award. “§ 591. Judicial Review “(a) Notwithstanding any other provision of law, any person adversely affected or aggrieved by an award made in an arbitration proceeding conducted under this subchapter may bring an action for review of such award only pursuant to the provisions of sections 9 through 13 of title 9. “(b) (1) A decision by an agency to use or not to use a dispute resolution proceeding under this subchapter shall be committed to the discretion of the agency and shall not be subject to judicial review, except that arbitration shall be subject to judicial review under section 10(b) of title 9. “(2) A decision by the head of an agency under section 590 to terminate an arbitration proceeding or vacate an arbitral award shall be committed to the discretion of the agency and shall not be subject to judicial review. “§ 592. Compilation of information “The Chairman of the Administrative Conference of the United States shall compile and maintain data on the use of alternative means of dispute resolution in conducting agency proceedings. Agencies shall, upon the request of the Chairman of the Administrative Conference of the United States, supply such information as is required to enable the Chairman to comply with this section. “§ 593. Support services “For the purposes of this subchapter, an agency may use (with or without reimbursement) the services and facilities of other Federal agencies, public and private organizations and agencies, and individuals, with the consent of such agencies, organizations, and individuals. An agency may accept voluntary and uncompensated services for purposes of this subchapter without regard to the provisions of section 1342 of title 31.”.

2. 1992

   Administrative Procedure Technical Amendments Act of 1991

   Pub. L. 102–354 § 3(b)(2) · 106 Stat. 944

   Changed · 5 U.S.C. § 577

   Pub. L. 102–354, § 3(b)(2), renumbered section 587 of this title as this section

   Source evidence

   Code amendment note
   Pub. L. 102–354, § 3(b)(2), renumbered section 587 of this title as this section.

   Enacted provision · exact public law section
   (2) by redesignating sections 581 through 593 as sections 571 through 583, respectively;

3. 1992

   Administrative Procedure Technical Amendments Act of 1991

   Pub. L. 102–354 § 3(b)(3) · 106 Stat. 944

   Substituted · 5 U.S.C. § 577(b)

   Pub. L. 102–354, § 3(b)(3), substituted “section 573” for “section 583”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 102–354, § 3(b)(3), substituted “section 573” for “section 583”.

   Enacted provision · exact public law section
   (3) in subsection (b) of section 577, as redesignated by paragraph (2) of this section, by striking “583” and inserting “573”; and

3 of 3 references resolved to an enrolled provision