Appendix to Part 1400 - Code of Professional Conduct for Labor Mediators
29:4.1.3.1.1.3.1.3.1 :
Appendix to Part 1400 - Code of Professional Conduct for Labor
Mediators preamble
The practice of mediation is a profession with ethical
responsibilities and duties. Those who engage in the practice of
mediation must be dedicated to the principles of free and
responsible collective bargaining. They must be aware that their
duties and obligations relate to the parties who engage in
collective bargaining, to every other mediator, to the agencies
which administer the practice of mediation, and to the general
public.
Recognition is given to the varying statutory duties and
responsibilities of the city, State and Federal agencies. This
code, however, is not intended in any way to define or adjust any
of these duties and responsibilities, nor is it intended to define
when and in what situations mediators from more than one agency
should participate. It is, rather, a personal code relating to the
conduct of the individual mediator.
This code is intended to establish principles applicable to all
professional mediators employed by city, State or Federal agencies
or to mediators privately retained by parties.
I. The responsibility of the mediator to the parties. The
primary responsibility for the resolution of a labor dispute rests
upon the parties themselves. The mediator at all times should
recognize that the agreements reached in collective bargaining are
voluntarily made by the parties. It is the mediator's
responsibility to assist the parties in reaching a settlement.
It is desirable that agreement be reached by collective
bargaining without mediation assistance. However, public policy and
applicable statutes recognize that mediation is the appropriate
form of governmental participation in cases where it is required.
Whether and when a mediator should intercede will normally be
influenced by the desires of the parties. Intercession by a
mediator on his own motion should be limited to exceptional
cases.
The mediator must not consider himself limited to keeping peace
at the bargaining table. His role should be one of being a resource
upon which the parties may draw and, when appropriate, he should be
prepared to provide both procedural and substantive suggestions and
alternatives which will assist the parties in successful
negotiations.
Since mediation is essentially a voluntary process, the
acceptability of the mediator by the parties as a person of
integrity, objectivity, and fairness is absolutely essential to the
effective performance of the duties of the mediator. The manner in
which the mediator carries out his professional duties and
responsibilities will measure his usefulness as a mediator. The
quality of his character as well as his intellectual, emotional,
social and technical attributes will reveal themselves by the
conduct of the mediator and his oral and written communications
with the parties, other mediators and the public.
II. The responsibility of the mediator toward other
mediators. A mediator should not enter any dispute which is
being mediated by another mediator or mediators without first
conferring with the person or persons conducting such mediation.
The mediator should not intercede in a dispute merely because
another mediator may also be participating. Conversely, it should
not be assumed that the lack of mediation participation by one
mediator indicates a need for participation by another
mediator.
In those situations where more than one mediator is
participating in a particular case, each mediator has a
responsibility to keep the others informed of developments which
are essential to a cooperative effort, and should extend every
possible courtesy to his fellow mediator.
The mediator should carefully avoid any appearance of
disagreement with or criticism of his fellow mediator. Discussions
as to what positions and actions mediators should take in
particular cases should be carried on solely between or among the
mediators.
III. The responsibility of the mediator toward his agency and
his profession. Agencies responsible for providing mediation
assistance to parties engaged in collective bargaining are a part
of government. The mediator must recognize that, as such, he is
part of government. The mediator should constantly bear in mind
that he and his work are not judged solely on an individual basis
but that he is also judged as a representative of his agency. Any
improper conduct or professional shortcoming, therefore, reflects
not only on the individual mediator but upon his employer and, as
such, jeopardizes the effectiveness of his agency, other government
agencies, and the acceptability of the mediation process.
The mediator should not use his position for private gain or
advantage, nor should he engage in any employment, activity or
enterprise which will conflict with his work as a mediator, nor
should he accept any money or thing of value for the performance of
his duties - other than his regular salary - or incur obligations
to any party which might interfere with the impartial performance
of his duties.
IV. The responsibility of the mediator toward the public.
Collective bargaining is in essence a private, voluntary process.
The primary purpose of mediation is to assist the parties to
achieve a settlement. Such assistance does not abrogate the rights
of the parties to resort to economic and legal sanctions. However,
the mediation process may include a responsibility to assert the
interest of the public that a particular dispute be settled; that a
work stoppage be ended; and that normal operations be resumed. It
should be understood, however, that the mediator does not regulate
or control any of the content of a collective bargaining
agreement.
It is conceivable that a mediator might find it necessary to
withdraw from a negotiation, if it is patently clear that the
parties intend to use his presence as implied governmental sanction
for an agreement obviously contrary to public policy.
It is recognized that labor disputes are settled at the
bargaining table; however, the mediator may release appropriate
information with due regard (1) to the desires of the parties, (2)
to whether that information will assist or impede the settlement of
the dispute and (3) to the needs of an informed public.
Publicity shall not be used by a mediator to enhance his own
position or that of his agency. Where two or more mediators are
mediating a dispute, public information should be handled through a
mutually agreeable procedure.
V. Responsibility of the mediator toward the mediation
process. Collective bargaining is an established institution in
our economic way of life. The practice of mediation required the
development of alternatives which the parties will voluntarily
accept as a basis for settling their problems. Improper pressures
which jeopardize voluntary action by the parties should not be a
part of mediation.
Since the status, experience, and ability of the mediator lend
weight to his suggestions and recommendations, he should evaluate
carefully the effect of his suggestions and recommendations and
accept full responsibility for their honesty and merit.
The mediator has a continuing responsibility to study industrial
relations to improve his skills and upgrade his abilities.
Suggestions by individual mediators or agencies to parties,
which give the implication that transfer of a case from one
mediation “forum” to another will produce better results, are
unprofessional and are to be condemned.
Confidential information acquired by the mediator should not be
disclosed to others for any purpose, or in a legal proceeding or be
used directly or indirectly for the personal benefit or profit of
the mediator.
Bargaining positions, proposals or suggestions given to the
mediator in confidence during the course of bargaining for his sole
information, should not be disclosed to another party without first
securing permission from the party or person who gave it to
him.
[31 FR 5423, Apr. 6, 1966]