_ Participants are informed of upcoming Workplace Disputes Section meetings sponsored by FDIC and USPS. They are also reminded that all agencies attending the WPDS sessions must complete a Program Progress Survey.

_ The purpose of this session is to provide participants with a moderated discussion of important ethical issues facing mediators in the federal agency workplace arena. The session begins with presentations by three panel members and concludes with an interactive discussion of specific hypothetical ethical and confidential situations presented in role-plays by the FDIC Players.

_ Introduced panel members and moderator, Charles Pou.

_ The purpose of today's session is not to provide black and white answers to all ethical dilemmas facing mediators (that is impossible), but rather to equip you with a process for recognizing, analyzing, and internalizing ethical issues. Mediators constantly face ethical dilemmas, yet knowing how to recognize and deal with an ethical dilemma is often much more perplexing.

_ The specific role mediators take will determine the dilemmas they will face and the specific standards they will follow. However, there are several dilemmas which are typical to all mediators, including a) keeping within the limits of competency, b) preserving impartiality, c) maintaining confidentiality, d) ensuring informed consent, e) preserving self-determination/maintaining nondirectiveness, f) separating mediation from counseling and legal advice, g) avoiding party exposure to harm as a result of mediation, h) preventing party abuse of the mediation process, I) handling conflicts of interest.

_ The guidelines and standards available now are very sparse, but they help us begin thinking systematically. One of the main problems with these codes is their internal inconsistency. It is a good idea for agencies to develop their own set of standards, as the U.S. Postal Service and U.S. Air Force have done. Individual agencies may then integrate into their standards any special issues they may face.

_ Professor Bush's theory of Ethical Tensions presents ethical standards as having characteristics of a rubber band; they may be stretched but there is a limit to how far. Mediators have a lot of flexibility and therefore their best tool is to give advanced warning, thus managing the parties' expectations. When in doubt tell the parties, but be careful and remember that mediation is a private process.

_ What is fundamental about Ethics? First, it is a great paradox because ethical standards in today's society appear extremely loose, yet at the same time watchdogs outside the profession, such as the media, tightly guard them. What does one do in the midst of this as a professional? Mediators should examine their own ethical standards as individuals. They must discover who they are ethically and develop within themselves a sensitivity to ethical issues in all parts of life, not just the professional.

_ What are the characteristics of Ethical Standards? The Bush diagram covers characteristics of most all standards including a) competence, b) impartiality, c) confidentiality, d) informed consent, e) self-determination, f) role limitation, g) avoid harm, h) good faith, I) conflict of interest. Examine the many standards that are out there. Two articles to read are Eric Green's "A Heretical View of a Mediation Privilege," in the Ohio State Journal on Dispute Resolution (2:1) and "Environmental Mediation and the Accountability Problem," by Lawrence Susskind in the Vermont Law Review (6:147).

_ The major ethical issues facing the professional mediator are 1) confidentiality, 2) balancing parties' self-determination and ensuing fair outcome, 3) how to handle duty to non party members, 4) mediator's competence, 5) unauthorized practice of [therapy, accounting, law, etc.,] 6) ethical limits of deception.

1. "The Act provides explicit, broad, and mandatory protection of confidentiality." Section 574 of the Act (5 U.S.C. '574) prohibits both the neutral and the parties from any voluntary or compelled disclosure of dispute resolution communications in any type of case or proceeding, except as specifically provided for under the Act.

2. "The statutory definitions are an important part of confidentiality protection." (_571) Especially know that "dispute resolution proceedings," 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. 5 U.S.C. '571(6); "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 a nonparty participant. 5 U.S.C. '571(5); "in confidence" means that the information is provided with the express intent of the source that it not be disclosed, or under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed. 5 U.S.C. '571(7). A written agreement to enter into a dispute resolution proceeding, a final written agreement resulting from a dispute resolution proceeding, and an arbitral award in a proceeding are excluded from the '571(5) definition of a "dispute resolution communication," and, therefore, are not entitled to confidentiality protection.

3. "The neutral must be involved in the communication." Involvement of the neutral in the communication is required for confidentiality protection. The Act protects communications only between the neutral and the parties because the confidentiality of those communications is perceived as a key to successful dispute resolution.

4. "Additional protection for communications originating from the neutral." Special provisions are provided for communications from the neutral in _574(b)(7).

5. "Disclosure by the neutral prohibited except in specific circumstances." Except in four cases in _574 (a)(1-4), "A neutral in a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or any communication provided in confidence to the neutral." Voluntary disclosure requires prior written permission.

6. "Disclosure by parties prohibited except in specific circumstances." Those seven exceptions are noted in _574 (b) (1-7).

7. "Improperly disclosed communications are not admissible." How do you enforce confidentiality? The Act provides in _574(c) that a dispute resolution communication disclosed by a neutral or by the parties, in violation of either '574(a) or '574(b), is not admissible in any proceeding relating to the issues in controversy for which the communication was made.

8. "The Act provides protection against abuses of confidentiality protection." Section 574(f) clarifies that otherwise discoverable evidence cannot be protected from disclosure simply by presenting it in the course of a dispute resolution proceeding.

9. "Confidential communications exempt from disclosure under the Freedom of Information Act." FOIA allows agency records to be made available to the public on request. The original ADR Act in 1990 made no exemption for dispute resolution cases. The ADR Act of 1996 does provide an exemption under _574 (j).

10. "Alternative procedures possible for disclosure by a neutral." The parties may agree to alternative procedures for disclosures by a neutral in '574 (d)(1) and (2).

_ There are no established ethical standards for dispute resolution program administrators, so they must also adhere to the standards set for mediators until such administrator standards are developed. At the moment the CPR Institute is in the process of developing mediation standards.

_ The most difficult task of program managers is to effectively balance their many competing duties. These include their duty to the organization, their duty to reach long term goals (i.e. decrease caseload; change workplace environment), their duty to provide users of the program with a quality service, and finally their duty to the program itself.

_ Ideally program managers should develop policies that state how they will govern the program. In directing a dispute resolution program, the program manager should be guided by three general principles, which include neutrality, self-determination, and confidentiality.

_ First, the program manager must be neutral and impartial. He/she must not appear to be an advocate for either managers or the employees. Therefore program managers must market their neutrality by proving they are advocates of the process, not the parties.

_ Second, program managers must realize the parties' right to self-determination by allowing them to make informed, voluntary decisions. Self-determination begins with the decision to mediate, which must be truly voluntary, not coerced. Program managers should be keenly aware of self-determination especially in new programs when they may unknowingly pressure parties into mediation to promote the program.

_ Finally, the toughest ethical dilemma for program managers is confidentiality. Early on it is important to formally institutionalize standards for administering the program. For example, determine who will be able to see what files. Also, confidentiality must be protected from the beginning, starting with the intake person. Employees and managers will be more likely to use the program if they know that what ever they say is confidential. It is difficult for program managers attempting to provide a quality service to balance quality control and confidentiality. How do you preserve confidentiality while discussing mediations with staff so that you can determine whether or not the program is providing quality service? And, most difficult of all, how do you deal with upper management?