BOP Program Statement 3712.01 § 3

Mediation is the intervention in a dispute or negotiation of an acceptable, impartial, and neutral

third party, who has no decision-making authority. The objective of this intervention is to assist

the parties to voluntarily reach an acceptable resolution to the issues in dispute.

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The mediator has no authority to render decisions. They are neutral facilitators skilled at working

with the parties to resolve their dispute. The mediator is not an arbitrator or judge. A mediator

primarily makes procedural suggestions regarding how parties can reach a resolution.

Occasionally, a mediator may suggest substantive options as a means of encouraging the parties

to expand the range of possible resolutions under consideration. A mediator often works with the

parties individually, in caucuses, to explore acceptable resolution options or to develop proposals

that might move the parties closer to resolution.

Mediators make procedural suggestions and intervene in the process when necessary to

overcome deadlock. The mediator performs the role of a catalyst enabling the parties to initiate

progress toward their own resolution of issues in dispute. The parties dictate the outcome of the

mediation, not the mediator. The mediator may draft any agreements reached by the parties.

a. Mediation Session Format. Typically, the mediator meets with both parties together in a

joint session. In this session, the mediator may initially ask each party to briefly describe the

workplace conflict. The mediator may ask each party what outcome they are seeking to resolve

the dispute. At the conclusion of the joint session, the mediator will typically meet with each

party separately. These sessions will allow the mediator to ask more direct questions of the

parties without putting the other person on the spot. At the conclusion of the separate sessions, it

is up to the mediator whether they will convene additional separate sessions or will bring the

parties back together for another joint session.

b. Mediation sessions are confidential. At the beginning of the mediation, all parties in the

room are required to sign an agreement provided by the mediator, which states everything

discussed in the room is confidential, with the exception of threats of imminent physical harm,

incidents of actual violence that occur during the mediation, or if disclosure will prevent public

harm, in accordance with 5 U.S.C. § 574. This agreement also states that neither party can

subpoena or depose the mediator in the event of future litigation. At the conclusion of each

separate session, the mediator will also ask each party what they do not want the mediator to

share with the other party. The mediator is bound by these requests of confidentiality.

The parties should come fully prepared to discuss the facts that led to the dispute. The parties

will have the opportunity during breaks to obtain whatever documentation they feel the other

side should read. The parties should also be able to discuss what they believe will resolve the

issue. Typically, the mediator will have no knowledge of the facts prior to the mediation.

A typical mediation session lasts four to six hours. The mediator will contact all parties prior to

the session to coordinate a time convenient to all parties. Mediation must be conducted during

normal business hours.

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If a resolution is reached because of the mediation, the mediator will summarize the resolution in

accordance with this program statement. At the conclusion of the mediation session, all notes

taken by the mediator or any of the parties must be destroyed.

c. Election and Approval of Mediation. The request for mediation will be made solely by the

CEO. All requests must be made on the BP-A1063, Mediation Election Form and submitted to

the Conflict Resolution Analysis Administrator (CRAA), in the EEO Office, Program Review

Division (PRD). If the CRAA believes the issue(s) is not appropriate for mediation, they will

contact the CEO in conference, to discuss their concerns. If mediation is deemed appropriate, the

CEO will provide the CRAA with the names of the participating parties.

As soon as practical, the CRAA will contact all parties to arrange a mutually acceptable date and

time and coordinate with the assigned mediator. Once a date and time is agreed upon by all

parties, the mediation will take place in person or virtually. In-person mediation sessions must

take place at the facility where the parties are assigned.

d. Representation during Mediation. In a mediation, the number of parties on each side will

typically be a maximum of two. If either party wishes to bring an additional party for any reason,

they must receive the permission of all parties.

Representation of staff members must be in accordance with all applicable federal laws and

regulations and the Program Statement Discrimination and Retaliation Complaints

Processing.

All participants must be on duty during the mediation.

e. Mediators (Neutrals). The Bureau may use mediators from the following sources: other

federal agencies, through a federal mediator sharing program or other arrangement, private

organizations, private contractors, bar associations, individual volunteers, or Bureau staff who

are DOJ-certified to be mediators. If a mediator is obtained from the private sector, the

procedures detailed in the Federal Acquisition Regulation must be followed.

In a mediation conducted under this program statement, the mediator’s duty to the parties is to be

“neutral, honest, and to act in good faith.” The mediator must ensure:

■ proceedings are fair, and all parties are participating in good faith;

■ confidentiality, including the destruction of all written notes taken during the mediation

or in preparation for the proceedings; and

■ neutrality, including having no conflict of interest with respect to the proceedings.

Ordinarily, the Bureau will not use Bureau staff as mediators. However, there may be

circumstances when the Bureau deems it necessary to utilize its own DOJ-certified mediators.

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Those exceptions will be determined by the EEO Officer, EEO Office, PRD. Should one of the

parties find the selected mediator unsuitable, that party should contact the CRAA to request the

selection of another mediator.

f. Resolution. If the parties agree to a resolution of the matter, they may decide if they want the

terms of the resolution in a signed written agreement. Any written agreement must state clearly

the terms of the resolution. All parties to the mediation will be provided with a copy of any

written resolution.

A BP-A1064, Mediation Outcome Form will be completed by the mediator and signed by all

parties. The mediator will provide a copy of the completed form to the CRAA who must forward

a copy solely to the CEO.