HHS - DAB -- SHARING NEUTRALS POLICY GUIDELINES

Purpose: this document revises and expands upon policy guidance issued in January 1999. It reflects recent developments in federal ADR policy. In addition, the policy addresses roles and responsibilities of the various participants: roster members, agency contacts, Sharing Neutrals administration. In order for this collaborative effort to remain effective, it is important that all participants follow the same policies and procedures.

The program began as a pilot in the mid-1990s as a way to provide low cost, high quality neutrals to federal agencies. During the first few years, considerable emphasis was placed on training mediators. Over time, the supply of neutrals as measured by roster membership, has expanded significantly.

Sharing Neutrals provides a pool of experienced, qualified collateral-duty mediators to participating federal agencies. For example, access to the roster is helpful when the size of an agency prohibits the use of in-house neutrals, the parties request mediators from outside the agency, the dispute involves specialized or technical issues beyond the scope of many mediators, or budgets preclude contracting for mediator services.

The following policies are important to fulfilling program goals and maintaining the integrity of this unique interagency effort.

All participants should be guided by the Administrative Dispute Resolution Act of 1996 (ADRA). More detailed guidance can be found in an issuance of the Federal ADR Council published in the Federal Register, December 29, 2000. The Sharing Neutrals Standards of Practice contains a section on confidentiality that primarily applies to mediators. These three documents, the ADR Act, the ADR Council’s guidance on confidentiality in Federal programs, and the Standards of Practice, are the bases for confidentiality policy and practice in Sharing Neutrals.

The Federal ADR Council recognized the need for confidentiality protections beyond the mediation proceeding. As a result, confidentiality considerations apply to a variety of ADR functions including intake, screening, and scheduling. Participating agencies may want to review their processes and procedures in light of the expanded requirements for confidentiality.

Sharing Neutrals developed an internal policy on confidentiality for program administration. It addresses access to information, record keeping, and evaluation. For example, names of individual parties are not requested nor maintained. Our records contain minimal information about the nature of disputes.

Since its inception, the Sharing Neutrals roster has included both experienced mediators and trained, but relatively inexperienced, co-mediators. Both types of mediators complete a registration form, provide requested documentation and have the written approval of their supervisors to do collateral-duty mediation through Sharing Neutrals. Co-mediators are eligible to become lead mediators when they can document they have successfully completed three to five co-mediations and are approved by the Sharing Neutrals administrator.

Due to expanded mediation training, the number of roster co-mediators has rapidly increased to nearly double that of the experienced mediators. In order to provide experience to co-mediators, the policy on co-mediators is as follows:

with rare exception, all cases mediated through Sharing Neutrals should have both a mediator and a co-mediator;
only Sharing Neutrals co-mediator roster members are eligible to co-mediate Sharing Neutrals cases;
the mediators agree to debrief at the close of mediation as an assessment tool; and
agencies with trained, but inexperienced mediators, who need co-mediation experience should either a) encourage these individuals to register with Sharing Neutrals or b) establish their own mentoring program that does not depend on Sharing Neutrals.

Agencies contact Sharing Neutrals for mediator referrals on a case-by-case basis. Sharing Neutrals will then provide the names and contact information for two mediators and two co-mediators. If these individuals are unavailable, the agency may contact Sharing Neutrals for additional names. This procedure makes the most effective use of the mediators’ time and availability. The agencies benefit by having access to a variety of mediator talent they might not otherwise. The mediators, in turn, have their rights and benefits protected as they have obtained supervisory approval to do collateral-duty mediation through Sharing Neutrals.

Agencies should not keep a "short list" or otherwise abuse the process for the reasons given above. Mediators may contact Sharing Neutrals to verify referral for a specific case. Should an agency continue to misuse Sharing Neutrals, they will be removed from the list of Participating Agencies. Likewise, Mediators will be removed from the roster if they knowingly abuse the process. Mediators who wish to do collateral-duty mediation outside of Sharing Neutrals should get supervisory permission to do so.

Sharing Neutrals prepares an Annual Fiscal Year Report on program use. Items include number of requests for referrals, number of requests by agency, mediators’ contribution by agency, and some outcome information. The Report is made available to participating agencies and roster members.

Feedback from parties is sought through the Sharing Neutrals User Survey. Information on the surveys is used only for evaluation purposes; a statement to that effect appears on the survey form. The raw data, which sometimes include names of individuals, are kept separate from case records.

Some agencies use their own evaluation instruments. Agencies may want to review these instruments and their evaluation process in light of confidentiality guidelines.

Agencies: to request mediator referrals for a specific case, an agency representative contacts Sharing Neutrals. (See Referral Tips for further details). This contact is repeated with each new mediation. Upon receipt of referrals, the agency contacts the referred mediators and co-mediators to determine availability. The agency representative works with the mediators in scheduling the initial session, securing a "neutral" space for the mediation conference, and providing materials such as flipcharts and markers. If the agency has its own Agreement to Mediate Form, the representative makes it available to the mediator. The representative also provides evaluation forms, either their own or Sharing Neutral’s.

It is important the agency provide Sharing Neutrals with the names of the selected mediators as soon as possible. That way, the names of the mediators not selected go back to the pool and are available for other referrals.

Participating Agencies should be familiar with and act in accordance with the Sharing Neutrals Standards of Practice, the ADR Act and subsequent guidance.

Roster Mediators: respond to agency contacts in a timely manner. If needed, verify referral with SN. Work with agency in handling logistics such as scheduling the initial session. Conduct the mediation. Mediators notify agency contact at conclusion of mediation. Mediator and co-mediator debrief at the close of mediation. They complete, sign and transmit the Mediation Report to Sharing Neutrals.

Mediators may draft the resolution agreement. Draft agreements must be approved by the parties before they are sent forward. If no agreement is reached, the mediators will notify the agency only that no agreement was reached and mediation has ended.

Mediators should keep minimal records after mediation is concluded. The Agreement to Mediate and Resolution Agreements are not considered confidential documents and may be part of the mediator’s files. However, all notes or background details not generally known or shared by the parties should be destroyed. Mediators are cautioned about the use of cases as examples in training, presentations etc. Special care must be taken to ensure that the parties and dispute are not identifiable.

Roster members are reminded to keep their contact information up-to-date and to notify Sharing Neutrals when they want to be removed from the roster.

Sharing Neutrals Administration: responds to agencies request for referrals in a timely manner; most referrals are made within 48 hours of receipt. Maintains roster of neutrals. The Administrator receives and reviews registration from individuals interested in joining the roster, decides whether to add an applicant to the roster, or to change a mediator’s status (e.g., co-mediator to lead mediator). Maintains list of Participating Agencies, responds to requests for information about Sharing Neutrals, and approves Agency Agreements to Participate.

Sharing Neutrals records each request for referral by case number. The names of the mediator and co-mediator are also on record as is outcome information. Using these records, Sharing Neutrals prepares an annual report that provides summaries on the use of the service, mediators’ agency affiliations, and outcomes. The accuracy of this information depends heavily on feedback from agencies and mediators.