A GUIDE FOR FEDERAL EMPLOYEE MEDIATORS 

A SUPPLEMENT TO AND ANNOTATION OF THE

MODEL STANDARDS OF CONDUCT FOR MEDIATORS

ISSUED BY 

THE AMERICAN ARBITRATION ASSOCIATION

THE AMERICAN BAR ASSOCIATION

AND 

THE ASSOCIATION FOR CONFLICT RESOLUTION

FEDERAL INTERAGENCY ADR WORKING GROUP 

STEERING COMMITTEE 

FINAL VERSION May 9, 2006 
FOREWORD 

This Guide, promulgated by the federal Interagency Alternative Dispute Resolution 

Working Group (“IADRWG”) Steering Committee, builds upon the September 2005 

Model Standards of Conduct for Mediators (“Model Standards”) issued by a joint 

committee of three major nationwide organizations, the American Arbitration 

Association (“AAA”), the American Bar Association (“ABA”) and the Association for 

Conflict Resolution (“ACR”) and approved by all three organizations . The Model 

Standards are set forth in their entirety below. This document provides further 

explication through a number of Federal Guidance Notes, set out in italics following the 

Standards to which they apply. This Guide is intended to provide practical ethical 

guidance for federal employee mediators tailored to mediation practice within the federal 

government. Non-federal mediators involved in federal mediations may wish to agree to 

adhere to the Model Standards and to use of this Guide, as part of their mediation 

employment agreements executed for such federal mediations. 

NOTE: This Guide applies to the internal management of the federal executive branch 

and is intended to provide helpful advice on potentially difficult questions. It is not 

intended to create any new right, benefit, or trust responsibility, substantive or 

procedural, enforceable at law or equity by a party against the United States, its 

agencies, its officers, or any person. Questions regarding interpretations of this Guide 

should be brought to the Office of the General Counsel or Legal Counsel in each 

department or agency. In addition, federal employee mediators must look to agency 

rules, regulations, directives and policies to obtain guidance in conducting proceedings 

for their agency. Regardless of their status as mediators, as federal employees, they are 

responsible for being aware of and complying with a variety of statutory and regulatory 

requirements, including certain reporting requirements. Should they have questions 

regarding any of these requirements and how they may relate to their obligations as 

mediators, it is incumbent on them to contact appropriate personnel within their 

respective agencies to resolve such questions. 

FINAL VERSION 2 May 9, 2006 
The Model Standards of Conduct for Mediators 

September 2005

The Model Standards of Conduct for Mediators was prepared in 1994 by the 

American Arbitration Association, the American Bar Association’s Section of Dispute 

Resolution, and the Association for Conflict Resolution1. A joint committee consisting of 

representatives from the same successor organizations revised the Model Standards in 

2005.2 Both the original 1994 version and the 2005 revision have been approved by each 

participating organization.3 

Preamble 

Mediation is used to resolve a broad range of conflicts within a variety of settings. 

These Standards are designed to serve as fundamental ethical guidelines for persons 

mediating in all practice contexts. They serve three primary goals: to guide the conduct 

of mediators; to inform the mediating parties; and to promote public confidence in 

mediation as a process for resolving disputes. 

Mediation is a process in which an impartial third party facilitates communication 

and negotiation and promotes voluntary decision making by the parties to the dispute. 

Mediation serves various purposes, including providing the opportunity for parties 

to define and clarify issues, understand different perspectives, identify interests, explore 

and assess possible solutions, and reach mutually satisfactory agreements, when desired. 

Note on Construction 

These Standards are to be read and construed in their entirety. There is no priority 

significance attached to the sequence in which the Standards appear. 

The use of the term “shall” in a Standard indicates that the mediator must follow 

the practice described. The use of the term “should” indicates that the practice described 

in the standard is highly desirable, but not required, and is to be departed from only for 

very strong reasons and requires careful use of judgment and discretion. 

The use of the term “mediator” is understood to be inclusive so that it applies to 

co-mediator models. 

1

 The Association for Conflict Resolution is a merged organization of the Academy of Family Mediators, 

the Conflict Resolution Education Network and the Society of Professionals in Dispute Resolution 

(SPIDR). SPIDR was the third participating organization in the development of the 1994 Standards. 

2

 Reporter’s Notes, which are not part of these Standards and therefore have not been specifically approved 

by any of the organizations, provide commentary regarding these revisions. 

3

 The 2005 revisions to the Model Standards were approved by the American Bar Association’s House of 

Delegates on August 9, 2005, the Board of the Association for Conflict Resolution on August 22, 2005, and 

the Executive Committee of the American Arbitration Association on September 8, 2005. 

FINAL VERSION 3 May 9, 2006 
These Standards do not include specific temporal parameters when referencing a 

mediation, and therefore, do not define the exact beginning or ending of a mediation. 

Various aspects of a mediation, including some matters covered by these 

Standards, may also be affected by applicable law, court rules, regulations, other 

applicable professional rules, mediation rules to which the parties have agreed and other 

agreements of the parties. These sources may create conflicts with, and may take 

precedence over, these Standards. However, a mediator should make every effort to 

comply with the spirit and intent of these Standards in resolving such conflicts. This 

effort should include honoring all remaining Standards not in conflict with these other 

sources. 

These Standards, unless and until adopted by a court or other regulatory authority, 

do not have the force of law. Nonetheless, the fact that these Standards have been 

adopted by the respective sponsoring entities should alert mediators to the fact that the 

Standards might be viewed as establishing a standard of care for mediators. 

STANDARD I. SELF-DETERMINATION 

A. A mediator shall conduct a mediation based on the principle of party selfdetermination. Self-determination is the act of coming to a voluntary, uncoerced 

decision in which each party makes free and informed choices as to process and 

outcome. Parties may exercise self-determination at any stage of a mediation, 

including mediator selection, process design, participation in or withdrawal from 

the process, and outcomes. 

1. Although party self-determination for process design is a fundamental 

principle of mediation practice, a mediator may need to balance such party 

self-determination with a mediator’s duty to conduct a quality process in 

accordance with these Standards. 

2. A mediator cannot personally ensure that each party has made free and 

informed choices to reach particular decisions, but, where appropriate, a 

mediator should make the parties aware of the importance of consulting 

other professionals to help them make informed choices. 

B. A mediator shall not undermine party self-determination by any party for reasons 

such as higher settlement rates, egos, increased fees, or outside pressures from 

court personnel, program administrators, provider organizations, the media or 

others. 

FINAL VERSION 4 May 9, 2006 
Federal Guidance Notes: 

1. If, in a federal employee mediator’s informed judgment, an agreement desired by the 

parties will contravene federal law or regulation, the mediator should raise the issue for 

the parties to consider. If the parties cannot satisfy the mediator’s concerns and 

nevertheless insist on executing such an agreement, the mediator should withdraw from 

the mediation immediately. 

2. Certain federal agencies have instituted workplace mediation programs that require 

managers and supervisors to participate initially in mediation. These programs do not 

violate this self-determination standard, because the agency, as one of the parties, has 

elected voluntarily to participate in the mediation, with the manager or supervisor 

attending as the agency party’s representative. 

3. To the extent it does not interfere with the self-determination of the parties, and so 

long as the parties and sponsoring agency programs authorize the mediator to do so, a 

mediator may offer a party his or her evaluation of that party’s position as a means of 

assisting the party realistically to assess the strength of its positions and the risks 

associated with proceeding with any litigation. 

STANDARD II. IMPARTIALITY 

A. A mediator shall decline a mediation if the mediator cannot conduct it in an 

impartial manner. Impartiality means freedom from favoritism, bias or prejudice. 

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct 

that gives the appearance of partiality. 

1. A mediator should not act with partiality or prejudice based on a 

participant’s personal characteristics, background, values and beliefs, or 

performance at a mediation, or any other reason. 

2. A mediator should neither give nor accept a gift, favor, loan or other item 

of value that raises a question as to the mediator’s actual or perceived 

impartiality. 

3. A mediator may accept or give de minimis gifts or incidental items or 

services that are provided to facilitate a mediation or respect cultural 

norms so long as such practices do not raise questions as to a mediator’s 

actual or perceived impartiality. 

C. If at any time a mediator is unable to conduct a mediation in an impartial manner, 

the mediator shall withdraw. 

FINAL VERSION 5 May 9, 2006 
Federal Guidance Notes: 

1. If a federal employee mediator determines he/she is unable to maintain and exhibit 

impartiality because of agency efforts to influence inappropriately the mediator’s 

conduct or otherwise compromise the mediator’s impartiality, the mediator should 

withdraw from the mediation. 

2. Government ethics regulations prohibit the solicitation and receipt of gifts, and this 

includes gifts of travel. See, for example, 5 U.S.C. § 7353, 31 U.S.C § 1353, and 5 C.F.R. 

2635 Subparts B and C. Executive branch regulations are posted on the Office of 

Government Ethics (OGE) website which, at the time of this publication, is 

www.usoge.gov. The term “gifts of travel” is not intended to include the parties’ 

reimbursement to the mediator of travel costs incurred in conjunction with rendering of 

mediation services. 

STANDARD III. CONFLICTS OF INTEREST 

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of 

interest during and after a mediation. A conflict of interest can arise from 

involvement by a mediator with the subject matter of the dispute or from any 

relationship between a mediator and any mediation participant, whether past or 

present, personal or professional, that reasonably raises a question of a mediator’s 

impartiality. 

B. A mediator shall make a reasonable inquiry to determine whether there are any 

facts that a reasonable individual would consider likely to create a potential or 

actual conflict of interest for a mediator. A mediator’s actions necessary to 

accomplish a reasonable inquiry into potential conflicts of interest may vary based 

on practice context. 

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts 

of interest that are reasonably known to the mediator and could reasonably be 

seen as raising a question about the mediator’s impartiality. After disclosure, if 

all parties agree, the mediator may proceed with the mediation. 

D. If a mediator learns any fact after accepting a mediation that raises a question with 

respect to that mediator’s service creating a potential or actual conflict of interest, 

the mediator shall disclose it as quickly as practicable. After disclosure, if all 

parties agree, the mediator may proceed with the mediation. 

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the 

integrity of the mediation, a mediator shall withdraw from or decline to proceed 

with the mediation regardless of the expressed desire or agreement of the parties 

to the contrary. 

FINAL VERSION 6 May 9, 2006 
F. Subsequent to a mediation, a mediator shall not establish another relationship with 

any of the participants in any matter that would raise questions about the integrity 

of the mediation. When a mediator develops personal or professional 

relationships with parties, other individuals or organizations following a 

mediation in which they were involved, the mediator should consider factors such 

as time elapsed following the mediation, the nature of the relationships 

established, and services offered when determining whether the relationships 

might create a perceived or actual conflict of interest. 

Federal Guidance Note: The Administrative Dispute Resolution Act of 1996 (“ADR 

Act”) (at 5 U.S.C. § 573(a)) requires federal employee mediators to disclose conflicts of 

interest in writing and this includes making sure that all parties to a mediation are aware 

of the precise nature of the mediator’s relationship with any party. A federal employee 

mediator must limit his/her role to that of mediator and must never assume the role of 

advocate or advisor of any sort for any party’s interests during the mediation process. 

Depending on the policies of their sponsoring program and the desires of the parties, 

federal employee mediators may offer evaluation of, for example, the strengths and 

weaknesses of positions, the value and cost of alternatives to settlement or the barriers to 

settlement (collectively referred to as evaluation) only if such evaluation does not 

interfere with the mediator’s impartiality or the principle of self-determination of the 

parties. (See Federal Guidance Note 3 following Standard I, Self-Determination.) Under 

EEOC Management Directive MD-110, an EEO investigator or counselor may not serve 

as a mediator in an EEO case in which he/she has investigated or counseled the 

complainant. In addition, a mediator must not advise, counsel or represent any of the 

parties in any future proceeding concerning the subject matter of the dispute. A federal 

employee mediator must not serve as an advisor or approving official, for the purpose of 

approving a settlement agreement for statutory, regulatory or other legal compliance, 

when the mediator has mediated the dispute that is the subject of the settlement. Finally, 

mediators might also be subject to other statutes or regulations that prohibit their 

participation as a neutral regardless of disclosure. 

STANDARD IV. COMPETENCE 

A. A mediator shall mediate only when the mediator has the necessary competence 

to satisfy the reasonable expectations of the parties. 

1. Any person may be selected as a mediator, provided that the parties are 

satisfied with the mediator’s competence and qualifications. Training, 

experience in mediation, skills, cultural understandings and other qualities 

are often necessary for mediator competence. A person who offers to 

serve as a mediator creates the expectation that the person is competent to 

mediate effectively. 

FINAL VERSION 7 May 9, 2006 
2. A mediator should attend educational programs and related activities to 

maintain and enhance the mediator’s knowledge and skills related to 

mediation. 

3. A mediator should have available for the parties’ information relevant to 

the mediator’s training, education, experience and approach to conducting 

a mediation. 

B. If a mediator, during the course of a mediation determines that the mediator 

cannot conduct the mediation competently, the mediator shall discuss that 

determination with the parties as soon as is practicable and take appropriate steps 

to address the situation, including, but not limited to, withdrawing or requesting 

appropriate assistance. 

C. If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, 

medication or otherwise, the mediator shall not conduct the mediation. 

STANDARD V. CONFIDENTIALITY 

A. A mediator shall maintain the confidentiality of all information obtained by the 

mediator in mediation, unless otherwise agreed to by the parties or required by 

applicable law. 

1. If the parties to a mediation agree that the mediator may disclose 

information obtained during the mediation, the mediator may do so. 

2. A mediator should not communicate to any non-participant information 

about how the parties acted in the mediation. A mediator may report, if 

required, whether parties appeared at a scheduled mediation and whether 

or not the parties reached a resolution. 

3. If a mediator participates in teaching, research or evaluation of mediation, 

the mediator should protect the anonymity of the parties and abide by their 

reasonable expectations regarding confidentiality. 

B. A mediator who meets with any persons in private session during a mediation 

shall not convey directly or indirectly to any other person, any information that 

was obtained during that private session without the consent of the disclosing 

person. 

C. A mediator shall promote understanding among the parties of the extent to which 

the parties will maintain confidentiality of information they obtain in a mediation. 

D. Depending on the circumstance of a mediation, the parties may have varying 

expectations regarding confidentiality that a mediator should address. The parties 

FINAL VERSION 8 May 9, 2006 
may make their own rules with respect to confidentiality, or the accepted practice 

of an individual mediator or institution may dictate a particular set of 

expectations. 

Federal Guidance Notes: 

1. Unless a specific statute controls, the confidentiality standards of the ADR Act, found 

at 5 U.S.C. § 574, will govern the confidentiality obligations in federal administrative 

mediations, and federal employee mediators should consider this statute to be the 

“applicable law” referenced in standard V.A. Similarly, for matters in United States 

district courts, mediators need to understand the confidentiality standards established 

by local rules of court required by the Alternative Dispute Resolution Act of 1998, at 28 

U.S.C. 652(d). Mediators need to recognize that each district court is distinct, and that 

the rules in one district might differ significantly from the rules in another district. 

2. These statutes do not afford absolute confidentiality protection. Federal employee 

mediators must refrain from unauthorized disclosure of “dispute resolution 

communications,” as defined by the ADR Act, 5 U.S.C. 574(a). Federal employee 

mediators should consult their agency’s guidance, as well as the ADR confidentiality 

guidance promulgated by the U.S. Attorney General’s Federal ADR Council published 

at 65 Federal Register 83085 (December 29, 2000) and the IADRWG website 

(http://www.adr.gov). A joint committee of the ABA Dispute Resolution, Administrative 

Law, and Public Contract Law Sections has developed additional federal ADR 

confidentiality guidance. The IADRWG Steering Committee’s Confidentiality 

Subcommittee also has issued a confidentiality guidance handbook for federal 

workplace mediation, which is available on the IADRWG website. 

STANDARD VI. QUALITY OF THE PROCESS 

A. A mediator shall conduct a mediation in accordance with these Standards and in a 

manner that promotes diligence, timeliness, safety, presence of the appropriate 

participants, party participation, procedural fairness, party competency and 

mutual respect among all participants. 

1. A mediator should agree to mediate only when the mediator is prepared to 

commit the attention essential to an effective mediation. 

2. A mediator should only accept cases when the mediator can satisfy the 

reasonable expectation of the parties concerning the timing of a mediation. 

3. The presence or absence of persons at a mediation depends on the agreement 

of the parties and the mediator. The parties and mediator may agree that 

others may be excluded from particular sessions or from all sessions. 

FINAL VERSION 9 May 9, 2006 
4. A mediator should promote honesty and candor between and among all 

participants, and a mediator shall not knowingly misrepresent any material 

fact or circumstance in the course of a mediation. 

5. The role of a mediator differs substantially from other professional roles. 

Mixing the role of a mediator and the role of another profession is problematic 

and thus, a mediator should distinguish between the roles. A mediator may 

provide information that the mediator is qualified by training or experience to 

provide, only if the mediator can do so consistent with these Standards. 

6. A mediator shall not conduct a dispute resolution procedure other than 

mediation but label it mediation in an effort to gain the protection of rules, 

statutes, or other governing authorities pertaining to mediation. 

7. A mediator may recommend, when appropriate, that parties consider resolving 

their dispute through arbitration, counseling, neutral evaluation or other 

processes. 

8. A mediator shall not undertake an additional dispute resolution role in the 

same matter without the consent of the parties. Before providing such service, 

a mediator shall inform the parties of the implications of the change in process 

and obtain their consent to the change. A mediator who undertakes such role 

assumes different duties and responsibilities that may be governed by other 

standards. 

9. If a mediation is being used to further criminal conduct, a mediator should 

take appropriate steps including, if necessary, postponing, withdrawing from 

or terminating the mediation. 

10. If a party appears to have difficulty comprehending the process, issues, or 

settlement options, or difficulty participating in a mediation, the mediator 

should explore the circumstances and potential accommodations, 

modifications or adjustments that would make possible the party’s capacity to 

comprehend, participate and exercise self-determination. 

B. If a mediator is made aware of domestic abuse or violence among the parties, the 

mediator shall take appropriate steps including, if necessary, postponing, 

withdrawing from or terminating the mediation. 

C. If a mediator believes that participant conduct, including that of the mediator, 

jeopardizes conducting a mediation consistent with these Standards, a mediator 

shall take appropriate steps including, if necessary, postponing, withdrawing from 

or terminating the mediation. 

FINAL VERSION 10 May 9, 2006 
Federal Guidance Notes: 

1. With respect to Standard VI.A.3, certain individuals may not be excluded from a 

federal mediation, if their attendance and/or participation is mandated by federal law. 

For example, the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 

7114(A)(2)(a), entitles a labor organization representing bargaining unit employees to be 

represented at any “formal discussion” between one or more representatives of an 

agency and one or more employees in the unit the union represents. This right has been 

interpreted by the Federal Labor Relations Authority and the U.S. Court of Appeals for 

the District of Columbia as applying to mediation of formal EEO complaints when the 

complainant is a bargaining unit employee. See, e.g., Dep’t of the Air Force, 436th Airlift 

Wing, Dover AFB v. FLRA, 316 F.3d 280 (D.C. Cir. 2003); Luke Air Force Base, Ariz., 

54 F.L.R.A. 716 (1998), rev’d, 208 F.3d 221 (9th Cir. 1999). Federal employee 

mediators should consult with the agency’s ADR Program official, a Labor Relations 

Officer, labor counsel or other appropriate official when confronted with an issue of 

union attendance in a federal mediation pursuant to its “formal discussion” rights. 

2. Federal employee mediators should not accept federal mediation assignments unless 

the assignment is under the auspices of an agency program, including an established 

multi-agency shared neutrals program, so as to avert the possibility of being charged 

with abuse of official time or otherwise putting at risk their rights and benefits as federal 

employees. Federal employee mediators are encouraged to contact their agency’s 

mediation program administrator or Dispute Resolution Specialist for answers to specific 

questions related to these Standards, including questions involving potential conflicts of 

interest or abuse of government positions. If applicable, they may also wish to contact 

their respective agency’s ethics officer to resolve particular questions, and/or other 

appropriate official to secure authorization to serve as mediators. 

STANDARD VII. ADVERTISING AND SOLICITATION 

A. A mediator shall be truthful and not misleading when advertising, soliciting or 

otherwise communicating the mediator’s qualifications, experience, services and 

fees. 

1. A mediator should not include any promises as to outcome in 

communications, including business cards, stationery, or computer-based 

communications. 

2. A mediator should only claim to meet the mediator qualifications of a 

governmental entity or private organization if that entity or organization 

has a recognized procedure for qualifying mediators and it grants such 

status to the mediator. 

FINAL VERSION 11 May 9, 2006 
B. A mediator shall not solicit in a manner that gives an appearance of partiality for 

or against a party or otherwise undermines the integrity of the process. 

C. A mediator shall not communicate to others, in promotional materials or through 

other forms of communication, the names of persons served without their 

permission. 

Federal Guidance Note: For mediations subject to the ADR Act of 1996, mediators serve 

at the will of the parties. See 5 U.S.C. § 573(b). When federal employee mediators 

provide information regarding their experience and qualifications, they should provide 

meaningful and accurate information sufficient for the parties to make an informed 

decision to accept the mediator, whether that information is provided to the parties 

directly, via a roster, or otherwise. 

STANDARD VIII. FEES AND OTHER CHARGES 

A. A mediator shall provide each party or each party’s representative true and 

complete information about mediation fees, expenses and any other actual or 

potential charges that may be incurred in connection with a mediation. 

1. If a mediator charges fees, the mediator should develop them in light of all 

relevant factors, including the type and complexity of the matter, the 

qualifications of the mediator, the time required and the rates customary 

for such mediation services. 

2. A mediator’s fee arrangement should be in writing unless the parties 

request otherwise. 

B. A mediator shall not charge fees in a manner that impairs a mediator’s 

impartiality. 

1. A mediator should not enter into a fee agreement which is contingent upon 

the result of the mediation or amount of the settlement. 

2. While a mediator may accept unequal fee payments from the parties, a 

mediator should not allow such a fee arrangement to adversely impact the 

mediator’s ability to conduct a mediation in an impartial manner. 

Federal Guidance Note: Although most federal employee mediators do not charge fees 

or are prohibited from charging fees, the programs for which they work sometimes 

charge nominal fees or seek cost reimbursement. Federal employee mediators should be 

prepared to answer questions regarding such arrangements for the mediations that they 

conduct, and conform to sections A and B above, as applicable. 

FINAL VERSION 12 May 9, 2006 
STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE 

A. A mediator shall act in a manner that advances the practice of mediation. A 

mediator promotes this Standard by engaging in some or all of the following: 

1. Fostering diversity within the field of mediation. 

2. Striving to make mediation accessible to those who elect to use it, 

including providing services at a reduced rate or on a pro bono basis as 

appropriate. 

3. Participating in research when given the opportunity, including obtaining 

participant feedback when appropriate. 

4. Participating in outreach and education efforts to assist the public in 

developing an improved understanding of, and appreciation for, 

mediation. 

5. Assisting newer mediators through training, mentoring and networking. 

B. A mediator should demonstrate respect for differing points of view within the 

field, seek to learn from other mediators and work together with other mediators 

to improve the profession and better serve people in conflict. 

FINAL VERSION 13 May 9, 2006