Departmental Appeals Board
STANDARDS OF PRACTICE FOR HHS MEDIATORS
These standards are modeled on the Standards of Practice for
Postal Service Mediators. Modifications were made to reflect
both the voluntary nature of Sharing Neutrals and the fact
that mediators are federal employees.
While the standards refer primarily to mediators, all
participants are encouraged to review them carefully.
Policies and practices that uphold these standards will help
ensure fairness for the parties and the process.
Competency: Mediators shall meet the basic qualifications for
participation in the program. In addition, mediators will
strive to enhance their skills. If a mediator feels s/he is
lacking the skills necessary for a particular case, the
mediator shall decline to serve or shall withdraw from the
Mediators are encouraged to participate in training,
attend professional conferences and meetings to upgrade
their skills and enhance their professional development.
Mediators shall disclose to parties the limits of their
skills or substantive expertise whenever this may be
relevant to handling of a case.
Beyond disclosure, mediators should exercise their own
judgment regarding whether their expertise and skills are
adequate to meet the demands of a case. Mediators should
decline to serve or withdraw from a case when their skills
and expertise are inadequate.
Impartiality: Mediators shall, in word and action, maintain
impartiality toward the parties and the issues in dispute.
Where the mediator's impartiality is in question, the
mediator shall decline to serve or withdraw from the case.
Impartiality is central to mediation as it directly
affects the mediator ability to function as a neutral.
Mediators shall not display favoritism or bias toward any
party or position taken by a party. Mediators shall be
committed to aid all parties, as opposed to a single
party, in exploring possibilities for resolution.
At the earliest possible opportunity, mediators shall
disclose any conflicts of interest and/or any present or
prior relationship with any of the parties or their
representatives. If any of the parties or representatives
objects to the mediators serving as the result of such
disclosure, the mediator shall withdraw. If the mediator
believes that a previous relationship will compromise
impartiality or appears to do so, the mediator shall
If the mediator or any party believes that and so states,
apart from relationships, the fact or appearance of
impartiality is compromised, the mediator shall withdraw.
Mediators should exercise discretion and due regard for
the appearance of impartiality in establishing new
relationships with parties to past mediations.
Confidentiality: mediators shall, subject to statutory
obligations to the contrary, meet the reasonable expectations
of the parties regarding the confidentiality of all
communications made within the mediation process.
Sharing Neutrals mediators agree to become familiar with
and practice consistently the confidentiality provisions
of the Administrative Dispute Resolution Act of 1996.
Apart from statutory duties to report certain kinds of
information, a mediator is obligated not to disclose to a
nonparty, directly or indirectly, any information
communicated to the mediator by a party to the mediation
Absent statutory duties, a mediator must not disclose,
directly or indirectly, to any party to a mediation,
information communicated to the mediator in confidence by
any other party unless that party gives permission to do
The mediator must limit information given to the referring
agency (other than a party) to the fact of whether or not
a settlement was reached. ("referring agency" applies to
the office or entity requesting mediator referrals from
A mediator cannot ensure the confidentiality of statements
parties make to each other or of any documents or other
tangible evidence shared during the mediation.
Where confidential information from one party might, if
known to the other party, change the second party's
decision about whether to accept or reject certain terms
of settlement, a mediator should encourage the first party
to permit disclosure of the information, but absent such
permission, the mediator must not disclose it.
Consent: Mediators shall make reasonable efforts to assure
that parties understand the mediation process and their
options, and that parties are able to make choices regarding
their participation in mediation generally or regarding
specific settlement options.
A mediator is obligated to explain the mediation process
to the parties at the outset, including the role and
function of the neutral, and to inform the parties of
their rights to refuse any offer of settlement or to
withdraw from mediation at any time and for any reason.
This obligation continues throughout the mediation
A mediator must not exert undue pressure on a party to
continue mediation or accept an offer. A mediator,
however, should encourage parties to consider both the
benefits of participation and settlement and the costs of
withdrawal or impasse.
Where a party appears to be acting under coercion or fear,
or without capacity to comprehend the process, issues or
options for settlement, the mediator must explore the
circumstances with the party and, unless the party
objects, discontinue mediation. If the party insists on
continuing, the mediator may do so, but should continue to
raise the question and check for willingness to proceed.
Self-Determination: mediators shall respect and encourage
self-determination by the parties in their decision to
resolve their dispute, and on what terms. Mediators shall
refrain from being directive or judgmental regarding the
issues in dispute or the options for settlement.
The parties have the responsibility for deciding whether
and on what terms to resolve their dispute. The mediator
may and should assist them in making informed and
thoughtful decisions. The mediator must not impose his or
her personal views or beliefs with regard to any aspect of
the dispute or potential settlement.
Subject to the above, the mediator should assist the
parties in considering proposed options for settlement,
including their acceptability, sufficiency, feasibility
and impact on third parties. Furthermore, the mediator may
make neutral suggestions for the parties However, at no
time should the mediator make decisions for the parties or
express his or her opinions about or advise for or against
any proposal under consideration.
If a party to mediation declines to consult an attorney or
counselor after the mediator has raised this option, the
mediator is obligated to permit the mediation to go
forward according to the party's wishes.
If the mediator is aware that an agreement desired by the
parties could not be enforced, because it is illegal or
unenforceable, or for any other reason, the mediator is
obligated to inform the parties. If the parties insist on
the agreement, the mediator must discontinue mediation but
should not violate the obligation of confidentiality.
Separation of Mediation from Counseling and/or Providing
Legal Advice: mediators must limit their role solely to that
of mediator. They should refrain from giving legal or
therapeutic information or advice.
A mediator may, in areas where s/he is knowledgeable and
experienced, raise questions regarding the information
presented by the parties, including information about the
A mediator should never provide professional advice to the
parties or express a professional or personal opinion on
an issue or option for settlement. The mediator may
provide relevant information, including information about
If the mediator believes a party is acting without
adequate information or legal advice on legal or
psychological aspects of the issues presented, the
mediator must raise the option of obtaining independent
expert advice prior to resolving issues and afford the
parties the opportunity to do so.
A mediator must limit his or her role to that of mediator,
and must never assume the role of advocate for either
party's interests or provide counseling or therapy to
either party during the mediation process.
Promotion of Respect and Control of Abuse of the Process:
mediators shall encourage an atmosphere of mutual respect and
shall take reasonable steps subject to the principle of
self-determination, to limit abuse of the mediation process.
Mediators should be mindful that parties participate in
good faith and that potential for abuse of the process is
present in any mediation.
The mediator should make reasonable efforts to prevent
manipulation and intimidation by either party.
The mediator should assist the parties in establishing a
dialogue that promotes the understanding and respect for
the other's positions and concerns even if the parties
Where a mediator discovers intentional abuse of the
process, such as non disclosure or lying, the mediator has
an obligation to encourage the abusing party to alter
their conduct. The mediator is not obligated to reveal the
conduct or to discontinue the process, but the mediator
may discontinue mediation as long as this does not violate
the obligation of confidentiality.
Conflicts of Interest: mediators shall, as far as possible,
avoid conflicts of interest and, in any event, shall resolve
all such conflicts in favor of their primary obligation to
serve impartially the parties in the dispute.
A mediator who is a lawyer must not advise or represent
either of the parties in future proceedings concerning the
subject matter of the dispute. Likewise the mediator who
is a therapist or trained counselor must not provide
future therapy or counseling to either of the parties or
both of them regarding the subject matter of the dispute.
Mediators are encouraged to contact the Sharing Neutrals
administrator for answers to specific questions related to
potential conflicts of interest or abuse of government
position. If applicable, they also may want to contact
their respective Agency Ethics Officer.
Mediators are obligated to put the interests of the
parties above the interest of the referring agencies if
the two come into conflict
Where a party is represented or advised by a professional
advocate or counselor, the mediator is obligated to put
the interests of the party over his/her own interest in
maintaining cordial relations with the other professional
if the two come into conflict.
Maintenance of Program Integrity: mediators shall accept and
carry out their assignments consistent with Sharing Neutrals
policies and procedures.
Mediators should not accept assignments from an agency
unless the assignment is generated by a Sharing Neutrals
referral; mediators who knowingly do so, are not
functioning as Sharing Neutral mediators.
Mediators should be aware that mediating outside the
Sharing Neutrals program could result in a charge of abuse
of official time and/or otherwise affect their rights and
benefits as federal employees.
Mediation at the Departmental
Sample Agreement to
Sample Agreement to