Ethics for Neutrals

In the United States, ethical standards for mediators are governed, if at all, by the state in which the mediator engages his or her services.  The lack of uniform standards prompted a consortium of the Section on Dispute Resolution of the American Bar Association (ABA), the American Arbitration Association (AAA), and the Association for Conflict Resolution (ACR) to issue “Model Standards of Conduct” for mediators.  These model standards were subsequently supplemented for federal employee mediators in federal mediation proceedings.  This supplement, titled “A Guide for Federal Employee Mediators,” was issued by the Federal Interagency Alternative Dispute Resolution Working Group (IADRWG) Steering Committee on May 9, 2006.  Though not binding on agency, the Guide is intended to provide the same level of ethical guidance for federal mediators as exists for state mediators, with reference to additional standards or obligations specific to federal sector administrative dispute resolution.

Some aspects of professional practice that are typically addressed in ethical standards have also been addressed in the ADRA of 1996.  These include:

  • Conflicts of Interest:  The ADRA of 1996 permits a neutral to have “official, financial, or personal” conflicts of interest, but the conflict must be fully disclosed in writing to all parties.  The parties may reject the neutral.  5 USC 573(a).
  • Confidentiality:  The ADRA of 1996 spells out the bounds of confidentiality in significant detail.  5 USC 574(a); see also Ch.29, Confidentiality.
  • Ex Parte Communications in Arbitration:  Communications by one party to an arbitrator that are not provided to the other party are ex parte communications.  They are prohibited by 5 USC 579(d) unless the parties agree otherwise.  Note that this rule does not apply to mediators.