[Federal Register Volume 68, Number 86 (Monday, May 5, 2003)]
[Proposed Rules]
[Pages 23634-23640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10959]


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FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Part 1480

RIN 3076AA10


Access To Neutrals Initiative

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Proposed rule.

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SUMMARY: The Federal Mediation and Conciliation Service is proposing a 
new regulation to establish an Access to Neutrals Initiative. The main 
function of the Access to Neutrals Initiative is to provide a Registry 
of Neutrals--a list of individual dispute resolution providers who have 
documented their qualifications according to criteria outlined in the 
regulation in the categories of ADR experience, ADR education/training, 
substantive education in the content area and experience in the content 
area. The proposed Access to Neutrals Initiative also includes 
informational, ethical and continuing education requirements for 
individuals on the Registry of Neutrals as wellas a consumer complaint 
process. The proposed regulation provides for clients to access the 
Registry by Web site or by request from FMCS.

DATES: Written comments must be submitted to the office listed in the 
addresses section below on or before July 7, 2003.

ADDRESSES: Send comments to Peggy A. McNeive, Acting Director of the 
Access to Neutrals Initiative, FMCS, 801 Walnut, Suite 501, Kansas 
City, Missouri 64106.

FOR FURTHER INFORMATION CONTACT: Peggy A. McNeive, Telephone: (816) 
374-6215; Fax (816) 374-6026.

SUPPLEMENTARY INFORMATION: The Federal Mediation and Conciliation 
Service (``FMCS'' or ``the Agency'') is experiencing rapid growth in 
demand for its mediation and related alternative dispute resolution 
(ADR) services that may soon exceed the Agency's capacity to provide 
these services through its in-house staff of 200 professional 
mediators. Requests for ADR processes by other federal agencies, state 
governments, political subdivisions of states (agencies, cities, school 
districts, etc.) and other entities have added to FMCS' original 
mission to provide assistance in labor collective bargaining. Clients 
seek mediation and ADR services from FMCS for many types of disputes in 
addition to labor, including employment, public policy and multi-party 
regulatory negotiation disputes. Even greater numbers and different 
types of clients may seek assistance from FMCS in the future because of 
the leadership and credibility of FMCS in the area of dispute 
resolution. To meet the anticipated surge in demand, FMCS is proposing 
this regulation to provide its expanding base of clients with ready 
access to a pool of professional, private-sector neutrals equipped to 
handle workplace and organizational disputes arising outside of the 
labor/collective bargaining arena.
    The Access to Neutrals Initiative (ANI) embodied in the proposed 
regulation would establish a registry of highly qualified private-
sector neutrals,

[[Page 23635]]

screened and selected by the Agency according ot established standards, 
designed to meet the anticipated rise in demand for services. The 
registry would be an open resource designed to assist clients by giving 
them the tools to make their own informed selection from a broad base 
of professionals. FMCS will also utilize this registry to refer or 
appoint neutrals or panels of neutrals at the request fo the Agency's 
customers. To ensure that these neutrals meet the historically high 
standards set by FMCS, the regulation contains an evaluation and 
credentialing component as well as a provision to monitor indicators of 
the neutrals' performance on cases obtained through FMCS referral.
    Neutrals who wish to participate on the registry would submit 
education and experience background information to FMCS for a 
determination of whether the applicant met the standards established by 
FMCS. For inclusion on the registry, neutrals would have to agree to 
abide by the informational, ethical and continuing education 
requirements established by FMCS, and to participate in a consumer 
complaint process. In addition, the registry would be subject to a 
procedure for checking the ongoing effectiveness of the overall 
program. In order to maintain the qualified pool of neutrals and 
increase the value of the registry, FMCS will work with universities 
and training providers to establish and/or expand alternative dispute 
resolution programs. Finally, in maintaining the registry, FMCS would 
leverage its existing computer network-based resources to maximize the 
advantages afforded by technology, streamline program administration, 
and provide excellent customer service.
    The Agency developed the proposed regulation in keeping with its 
longstanding mandate to foster the use of effective conflict resolution 
processes. FMCS was established in accordance with the labor policy of 
the United States, which promotes and encourages the amicable 
resolution of employment disputes. Pursuant to Title II of the Labor 
Management Relations Act of 1947 (Pub. L. 80-101), as amended, (LMRA) 
the Agency has the obligation to ``assist parties'' to settle disputes 
``through conciliation and mediation.'' (29 U.S.C. 173(a)) Under the 
Administrative Dispute Resolution Act of 1996 (Pub. L. 104-320) 5 
U.S.C. 571 et seq. (ADR Act), Congress conveyed authority upon FMCS to 
``develop procedures that permit agencies to obtain the services of 
neutrals on an expedited basis.'' 5 U.S.C. 571(c)(2). FMCS's rule 
making ability in this area is subject only to consultation with 
``other appropriate Federal agencies and professional organizations 
experienced in matters concerning dispute resolution.'' 5 U.S.C. 
571(c).
    In accordance with the ADR Act, FMCS has consulted with the Federal 
Interagency ADR Working Group, a group created by the ADR Act with 
representatives from federal agencies having an interest in the 
implementation of ADR in the federal sector. In 2000, Gary Hattal, 
Director of the FMCS Institute, and Richard Giacolone, Director of ADR/
International Affairs at FMCS, consulted with the Federal Interagency 
Working Group about the establishment of a Roster of Neutrals by FMCS.
    In addition, FMCS held three external focus group meetings to 
identify concerns and gather recommendations concerning how standards 
for referral of private-sector neutrals could be established and 
utilized. The focus group members included practitioners, members of 
academia, staff members of ADR centers and members of the FMCS staff. 
The first focus group met in October of 2000 and centered on 
qualifications standards for neutrals. The second focus group met in 
June of 2001 and centered on the processes to be used in vetting 
neutrals. The final focus group met in February of 2002 to review the 
initial report and recommendations complied by the University of 
Arkansas. Following receipt of a draft report and recommendations from 
the University of Arkansas on the three external focus groups, an 
internal focus group consisting of the Deputy Director, a Regional 
Director, a Director of Mediation Services, the Director of Education 
and Training, the Director of ANI and two field mediators, was convened 
to review the draft report and make recommendations to the Agency 
Director. Based on the information developed through the University of 
Arkansas report and the recommendations of the internal focus group, 
FMCS developed the proposed regulation. FMCS will continue to convene 
focus groups in the future to review and refine the ANI.
    The Registry of Neutrals will be administered through the 
supervision of the Agency Director, the ANI Director, and the Neutrals 
Committee. The Committee membership will be at the discretion of the 
Director. A continual evaluation program will be developed; it will 
utilize focus groups and other evaluation tools to make recommendations 
on revising the ANI.
    The proposed ANI will be self-sustaining. FMCS will establish an 
application and listing fee for individuals who wish to be placed on 
the Registry; there will also be a fee for those who request that FMCS 
appoint a neutral from the Registry or provide a list of neutrals from 
the Registry. The funds generated by these fees will be used for the 
purpose of covering the costs associated with the ANI.
    The ANI regulation contains ten (10) subparts and two (2) 
Appendices. They are as follows:
    Subpart A addresses the policy pertaining to administration of the 
ANI, the authority for implementing this regulation and sets forth the 
definitions of terms to be utilized in the regulation. Consistent with 
FMCS policy on neutrals, individuals who are included on the Registry 
of Neutrals cannot be engaging in work as an advocate in the area of 
labor relations.
    Subpart B outlines the standards and requirements for individuals 
listed on the Registry of Neutrals, as well as the responsibilities of 
FMCS. The subpart also sets forth that the neutral is not acting in a 
capacity as an employee of the federal government, that he/she has a 
direct relationship with the parties who are employing him/her to 
conduct the case and that the neutral does not retain a right to be 
listed on the Registry. The subpart also addresses the criteria an 
individual must satisfy to be included on the Registry. The application 
process requires an executed application and a review of the 
individual's fulfillment of requirements in the form of awarded points 
for education/training and experience. Applicants who meet the 
requirements will then be recommended to Director of the Agency for 
possible inclusion of the Registry.
    Subpart C addresses the process by which the clients of FMCS will 
select neutrals from the Registry of Neutrals. A computerized system 
will be established from which information on neutrals will be listed; 
customers will be able to sort the neutrals by several different 
categories, including but not limited to geographical area, experience 
and fees charged. Selections from the Registry of Neutrals may be made 
by either obtaining information from the computerized system or through 
contacting FMCS. A fee will not be charged for obtaining a neutral from 
the computerized system; a fee equivalent to the fee for obtaining a 
panel of arbitrators from FMCS will be charged for obtaining a panel of 
neutrals or for appointing a neutral from the Registry of Neutrals.
    Subpart D addresses fees charged by the FMCS to listed neutrals and 
the method by which neutrals may bill

[[Page 23636]]

clients. FMCS will charge an application fee and a listing fee for 
neutrals on the Registry of Neutrals. Repeated complaints concerning a 
neutral's fees will be reviewed by FMCS and may be considered in 
determining if the neutral shall remain on the Registry.
    Subpart E requires all listed individuals to advise FMCS of changes 
in his/her information and/or fee structure and comply with requests 
for documentation by the ANI. FMCS will supply pertinent information to 
prospective clients for selection purposes.
    Subpart F establishes a complaint procedure for the ANI.
    Subpart G outlines the collaborative process with educational 
programs to establish standards for pre-accreditation. FMCS will work 
with educational institutions and training facilities to review the 
programs' number of contact hours, experience of classroom instructors, 
and method of instruction to determine if the program will be 
preaccredited by FMCS. Educational institutions and training facilities 
will participate in this program on a voluntary basis; the institutions 
will pay a fee to cover the pre-accreditation expenses.
    Appendix A sets forth the application fee, the listing fee and the 
fee for pre-accreditation of ADR programs to be charged by FMCS.
    Appendix B sets forth the point system for determining whether a 
neutral meets the standards for the FMCS Registry of Neutrals.
    Submit copies of electronic comment to [email protected]. See 
SUPPLEMENTARY INFORMATION for other information concerning electronic 
filing.

FOR FURTHER INFORMATION CONTACT: Peggy A. McNeive, Acting Director of 
the Access to Neutrals Initiative, FMCS, 801 Walnut Street, Suite 501, 
Kansas City, MO 64106-1823. Telephone (816) 374-6215; Fax (816) 374-
6026.

Access to Information in Comments

    Information submitted as a comment concerning this document may be 
claimed confidential by marking any part or all of the information as 
``CBI.'' Information so marked will not be disclosed but a copy of the 
comment that does contain CBI must be submitted for inclusion in the 
public record. FMCS may disclose information not marked confidential 
without prior notice. All written comments will be available for 
inspection at the address above from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays.

Electronic Access and Filing

    All comments and data in electronic form must be identified by the 
appropriate agency form number. No confidential business information 
(CBI) should be submitted through e-mail.

Regulatory Flexibility Act

    The Director, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 606(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. The fees assessed by 
FMCS for requests for panels are nominal and should not caused any 
significant economic effect on small entities which may request 
arbitration panels.

Executive Order 12866

    This regulation has been deemed significant under section 3(f)(4) 
of Executive Order 12866 and as such has been submitted to and reviewed 
by the Office of Management and Budget.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small Governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with Foreign-based companies in domestic and export markets.

List of Subjects in 29 CFR Part 1480

    Access to neutrals; registry of neutrals, alternative dispute 
resolution.

    For the reasons set forth in the preamble, FMCS proposes to add 29 
CFR part 1480 as follows:

PART 1480--REGISTRY OF NEUTRALS

Subpart A--Policy on Roster of Neutrals; Administration of Roster
Sec.
1480.1 Scope and authority.
1480.2 Policy.
1480.3 Administrative responsibilities.
1480.4 Definitions.
Subpart B--Registry of Neutrals; Selection and Retention
1480.5 Registry and status of members.
1480.6 Listing on the Registry of Neutrals; criteria for inclusion 
and retention.
Subpart C--Selection of Neutrals by Users of the Registry of Neutrals
1480.7 Freedom of choice.
1480.8 Procedures for selecting a neutral.
1480.9 Computerized selection system.
1480.10 Request for neutral from FMCS.
1480.11 Reservation of rights.
1480.12 Fee schedule.
Subpart D--Fees for Application to the Registry and Charges for the 
Services of Neutrals
1480.13 Application fee.
1480.14 Per diem; fees for services.
1480.15 Disclosure.
1480.16 OANI notification.
Subpart E--Reports and Biographical Sketches.
1480.17 Reports to OANI.
1480.18 Biographical sketches.
Subpart F--Complaint Procedure
1480.19 Role of Director of FMCS.
1480.20 Agreement to adhere to the Code of Professional 
Responsibility.
1480.21 Addressing complaints.
Subpart G--Accreditation of Education Programs in ADR
1480.22 Collaboration with universities.
1480.23 Pre-accreditation examination.
1480.24 Review of programs.
1480.25 Training programs.
Appendix A--Schedule of Fees
Appendix B--Point System for Determining Qualifications for the FMCS 
Registry of Neutrals

    Authority: 29 U.S.C. 171-180, 182-183; 5 U.S.C. 571-584.

Subpart A--Policy on Roster of Neutrals--Administration of Roster


Sec.  1480.1  Scope and authority.

    This part is issued by the Federal Mediation and Conciliation 
Services (FMCS) under Title II of the Labor Management Relations act of 
1947 (Pub. L. 80-101), as amended; authority is also based on the 
Administrative Dispute Resolution Act of 1996 (Public Law 104-320) 5 
U.S.C., 571 et seq. (ADR Act), and the funding authority for FMCS. It 
applies to all neutrals listed on the FMCS Registry of Neutrals, to all 
applicants for listing on the Registry of Neutrals, and to all persons 
or parties

[[Page 23637]]

seeking to obtain from FMCS either names or panels of names of neutrals 
listed on the Registry of Neutrals in connection with disputes which 
are submitted to an alternate dispute resolution procedure (ADR).


Sec.  1480.2  Policy.

    FMCS was established in accordance with the labor policy of the 
United States, which promotes and encourages the amicable resolution of 
employment disputes between the parties, rather than submitting such 
disputes through the adversarial processes. Submission of employment 
disputes through alternate dispute resolution procedures is an 
important feature of constructive employment relations as alternatives 
to adversarial processes. FMCS is establishing the Access to Neutrals 
Initiative (ANI) in accordance with its mandate concerning the labor 
policy of the United States.


Sec.  1480.3  Administrative responsibilities.

    The Director of the FMCS has responsibility for all aspects of 
FMCS's ANI and is the final agency authority on all questions 
concerning the ANI and the procedures associated with it.


Sec.  1480.4  Definitions.

    For purposes of this part:
    Advocacy: An advocate is a person who represents employers, labor 
organizations, or individuals as an employee, attorney, or consultant 
in matters of employment, including but not limited to, equal 
employment opportunity claims, workplace disputes, subjects of union 
representation, collective bargaining, unfair labor practices, and 
other areas generally recognized as constituting labor relations. This 
definition includes representatives of employers, or employees in 
individual cases or controversies involving worker's compensation, 
occupational health or safety, minimum wage, or other labor standards 
matters. This definition also includes individuals who are ``of 
counsel'' with a law firm which engages in the type of activities set 
fourth in this definition, or individuals who are affiliated with 
consulting firms who engage in those activities. Consultants who engage 
only in joint education or training or other non-adversarial activities 
are excluded from the definition of an advocate under this part.
    Alternative Dispute Resolution: Any dispute procedure that is used 
in lieu of adjudication to resolve issues in controversy including, but 
not limited to, settlement negotiations, conciliation, facilitation, 
mediation, fact-finding, mini-trials or any combination thereof. For 
the purpose of this part arbitration is specifically excluded from the 
definition of alternative dispute resolution.
    Neutrals Committee: The Director of the Agency shall establish a 
Neutrals Committee to be selected by the Director and shall include, 
but is not limited to, the Director of the ANI, FMCS Commissioners and 
private ADR specialists. The Director and/or his designee shall convene 
the Neutrals Committee meetings, as often as he/she deems necessary. A 
process for selecting applicants to be placed on the Registry of 
Neutrals shall be developed by the Office of the Access to Neutrals 
Initiative (OANI). The Neutrals Committee may review the qualifications 
of the applicants who have been awarded the minimum number of points 
under the system set forth in subpart D of this part to determine the 
applicants who should be recommended to the Director of FMCS for 
inclusion on the Registry of Neutrals.
    Office of the Access to Neutrals Initiative: The Director of FMCS 
shall appoint the Director of the ANI who is in charge of the OANI. The 
OANI maintains a Registry of Neutrals; administers the Procedures for 
Selection of Neutrals; assists, promotes, and cooperates in the 
establishment of programs for training and developing neutrals; 
oversees the computerized selection system utilized by customers; 
assists customers in utilizing the computerized selection system and 
provides names or panels of names of neutrals from the Registry of 
Neutrals to parties requesting them. The OANI shall be responsible for 
accepting complaints from users of the Registry of Neutrals and for the 
investigation of such complaints when appropriate.

Subpart B--Registry of Neutrals; Selection and Retention


Sec.  1480.5  Registry and status of members.

    (a) Registry of Neutrals: FMCS shall establish and maintain a 
Registry of Neutrals consisting of persons who meet the criteria for 
listing contained in subpart B of this part.
    (b) Adherence to standards and requirements: Persons listed on the 
Registry of Neutrals shall be required to comply with the rules and 
regulations, established by FMCS, pertaining to ADR processes and such 
guidelines and procedures as may be issued by OANI pursuant to submpart 
B of this part. Neutrals shall conform to the ethical standards and 
procedures established by FMCS.
    (c) Status of Neutrals: Persons who are listed on the Registry of 
Neutrals and are selected or appointed to conduct an ADR process do not 
become employees of the Federal Government by virtue of their selection 
or appointment. Following selection or appointment, the neutral's 
relationship is solely with the parties to the dispute except that 
neutrals are subject to certain reporting requirements and to standards 
of conduct as set forth in this part.
    (d) Role of FMCS: FMCS has no power to:
    (1) Compel parties to appear before a neutral;
    (2) Enforce an agreement to submit a dispute to an ADR process;
    (3) Compel parties to submit any issue to an ADR process;
    (4) Influence, alter, or set aside agreements made by the parties 
during an ADR process;
    (5) Compel, deny, or modify payment of compensation to a neutral.
    (e) Nominations and panels: On request of the parties to an 
agreement to utilize ADR processes to settle their disputes, or where 
ADR processes may be provided for by statute, the parties may select a 
neutral utilizing the computerized selection process without a fee 
being assessed or, upon request from the parties, FMCS may provide the 
name or a list of names of neutrals for a nominal fee. Procedures for 
obtaining these services are outlined in subpart C of this part. The 
parties selection of a neutral from the computerized system, the 
submission of a list of neutrals to the parties by FMCS, or the 
selection of a neutral by FMCS for the parties shall not constitute a 
determination by FMCS that an agreement exists between the parties to 
resolve their disputes through the utilization of an ADR process; nor 
does such action constitute a ruling that the matter in controversy 
should be submitted for resolution under an ADR process. The OANI will 
not decide the merits of a claim by either party that a dispute is not 
subject of any agreement to utilize alternative dispute resolution 
processes.
    (f) Rights of persons listed on the Registry of Neutrals: No person 
shall have any right to be listed or to remain listed on the Registry 
of Neutrals. FMCS retains its authority and responsibility to assure 
that the needs of the parties using its services are met. To accomplish 
this purpose, FMCS may establish procedures for the selection of 
neutrals, either through a computerized selection system to be utilized 
by the parties or the selection of a neutral or panel of neutrals by 
FMCS; factors to be considered in such selection may

[[Page 23638]]

include, but are not limited to, background and experience, 
availability, acceptability, geographic location, and the expressed 
preferences of the parties. FMCS may also establish procedures for the 
removal from the Registry of Neutrals of those neutrals who fail to 
adhere to provisions contained in this part.
    (g) Qualifications for the FMCS Registry of Neutrals: The following 
qualifications must be met by an applicant for the neutral to be placed 
on the FMCS Registry of Neutrals:
    (1) General Criteria: To be considered for selection on the 
Registry of Neutrals, applicants must have dispute resolution training 
and experience in employment mediation.
    (2) Advocacy: Any person who at the time of application is an 
advocate as defined in Sec.  1480.4, must agree to cease such activity 
before being recommended for inclusion on the Registry of Neutrals.
    (3) Criteria for Neutrals: Neutrals will be evaluated according to 
the criteria set forth in Appendix B of this part.


Sec.  1480.6  Listing on the Registry of Neutrals; criteria for 
inclusion and retention.

    (a) Selection of applicants to be placed on the Registry of 
neutrals: FMCS shall determine the time intervals during which it will 
accept applications to be included on the Registry of Neutrals and the 
number of individuals it will place on the Registry. Persons seeking to 
be listed on the Registry of Neutrals must complete and submit an 
application form, which may be obtained from OANI or from the FMCS ANI 
Web page. Upon receipt of an executed application, OANI will review the 
application, assure that it is complete, make such inquiries as are 
necessary and submit it to the selection process established by FMCS 
for neutrals. The Director of the ANI or the Neutrals Committee will 
review the completed applications of the individuals who have been 
awarded the minimum number of points necessary for consideration, as 
set forth in Sec.  1480.5(g). The Director of ANI or his/her designee 
shall make all final decisions as to whether an applicant will be 
listed on the Registry of Neutrals. Each applicant shall be notified in 
writing of the Director's decision and the general reasons for the 
decision.
    (b) Duration of listing; Retention on Registry of Neutrals: 
Neutrals will be listed on the Registry for a one (1) year term. The 
Director may remove an individual from the Registry of Neutrals or 
refused to extend the neutral's term for violation of this part and/or 
the Code of Professional Responsibility, as established by FMCS. Notice 
of cancellation shall be given to a person listed on the Registry of 
Neutrals whenever a member:
    (1) No longer meets the criteria for inclusion;
    (2) Does not provide a certification to FMCS that the neutral does 
not engage in advocacy, as defined in this part;
    (3) The individual has not conducted at least three (3) cases in 
the previous two (2) years in which an ADR process was utilized. It is 
not a requirement that these cases are ones in which the parties 
selected the neutral from the Registry of Neutrals maintained by FMCS.
    (4) The neutral has not provided the names and contact information 
for all the parties in three (3) of the cases the neutral participated 
in during the last 2 years. It is imperative the neutral inform the 
parties that FMCS may be contacting them to obtain general information 
concerning the ADR process.
    (5) The neutral has not submitted a certification that he/she has 
met the training requirements and a statement of the manner in which 
those requirements were met. Individuals on the Registry of Neutrals 
will be required to attend one (1) hour of ethics/professional conduct 
training and nine (9) hours of continuing education or training in 
conflict resolution.
    (6) The neutral has been the subject of complaints by parties who 
use FMCS services and the Director, after conducting an appropriate 
investigation, concludes there is cause for refusing to renew the 
neutral's term.
    (7) The neutral has failed to submit his/her fee for being listed 
on the FMCS Registry of Neutrals.
    (c) Inactive status: An individual on the Registry of Neutrals who 
continues to meet the criteria for listing on the Registry of Neutrals 
may request that he/she be put on ``inactive status'' on a temporary 
basis for any reason, except that the neutral wishes to return to work 
as an advocate; in that case, the neutral must remove his/her name from 
the Registry of Neutrals and apply for reinstatement when he/she is 
able to certify the he/she does not act as an advocate for any party.
    (d) Registry fee: All neutrals will be required to pay an annual 
fee for listing on the Registry of Neutrals, as set forth in Sec.  
1480.13.

Subpart C--Selection of Neutrals by Users of the Registry of 
Neutrals


Sec.  1480.7  Freedom of choice.

    Nothing contained in this part should be construed to require any 
party who utilizes the services of FMCS to obtain a neutral from the 
computerized system established by FMCS or to contact FMCS to obtain a 
list of neutrals or the name of a neutral from FMCS to conduct ADR 
processes.


Sec.  1480.8  Procedures for selecting a neutral.

    The OANI has been delegated the responsibility for administering 
the Registry of Neutrals. The OANI shall oversee the establishment and 
maintenance of the computerized selection process and administer the 
process for individual requests for FMCS to provide parties with a list 
of neutrals and/or the name of a neutral to handle a case.


Sec.  1480.9  Computerized selection system.

    FMCS shall establish and maintain a computerized selection system 
(selection system) listing the individuals on the Registry of Neutrals. 
Customers of FMCS shall be able to access the computerized selection 
system through the FMCS homepage or through a direct worldwide web 
address to the selection system site. Prior to obtaining access to the 
selection system, a user will be required to answer a short series of 
questions to establish the identity of the users of the system. The 
system will be set up to enable the users to select a neutral on the 
basis of several factors, for example, geographic region, experience in 
a particular field and fee charged. The parties will work with the 
selected neutral directly; the OANI does not need to be notified of the 
selection. The provision of a neutral from the selection system to 
either one or both of the parties does not signify the adoption of any 
position by the FMCS regarding the party's agreement to utilize ADR 
procedures or the matter in dispute.


Sec.  1480.10  Request for neutral from FMCS.

    As an alternative to the computerized selection system, parties may 
either request that FMCS provide them with a panel of neutrals or that 
FMCS appoint a neutral to work on the case. In order to request a panel 
of neutrals, the parties must file an individual or joint request in 
writing. In contrast, to request appointment of a neutral by FMCS, the 
parties must submit a joint request in writing. FMCS will utilize the 
Registry or Neutrals to provide the parties with a panel of neutrals 
and/or to select a neutral for the parties. The parties will work with 
the selected neutral directly; however, they should notify the OANI of 
the selection. The provision of a neutral from the selection system to 
either one or both of the parties does not signify the adoption of any 
position by the FMCS regarding the party's

[[Page 23639]]

agreement to utilize ADR procedures or the matter in dispute.
    (a) FMCS will provide the parties with a randomly selected list of 
neutrals from the geographic area in which the site of the dispute is 
located, unless otherwise requested from the parties;
    (b) The parties may request neutrals based on other factors, such 
as experience in a particular area, however, any request for a list of 
neutrals, other than by geographic area, must be a joint request by the 
parties;
    (c) If the parties do not agree on a neutral from the first panel, 
OANI will furnish a second and, if necessary, a third panel to the 
parties upon joint request accompanied by payment of an additional fee 
and a short explanation of why the parties could not agree on a neutral 
from the other panel(s). If parties are unable to agree on a selection 
after having received three (3) panels, the ORNI will make a direct 
appointment upon joint request.


Sec.  1480.11  Reservation of rights.

    FMCS reserves the right to decline to submit a panel or make 
appointment of a neutral, if the request submitted is overly burdensome 
or otherwise impracticable. FMCS, in such circumstances, may refer the 
parties to an FMCS mediator to assist in the design of an alternative 
solution. FMCS may also decline to service any requests from parties 
with a demonstrated history of non-payment of a neutrals fee or other 
behavior that interferes with the spirit or operation of the Registry 
of Neutrals process.


Sec.  1480.12  Fee schedule

    FMCS will not charge parties for the use of the electronic 
selection system. FMCS will charge the parties a nominal fee for all 
requests for lists, panels, appointment of neutrals and other major 
services, if the parties request such services from FMCS. A schedule of 
fees is included in Appendix A of this part.

Subpart D--Fees for Application to the Registry and Charges for the 
Services of Neutrals


Sec.  1480.13  Application fee.

    FMCS will charge all neutrals an application fee at the time he/she 
submits his/her application for inclusion on the Registry of Neutrals. 
In addition, FMCS will charge all neutrals an annual fee at the time 
he/she renews his/her listing on the Registry of Neutrals. Appendix A 
of this part contains the schedule of application and annual listing 
fees.


Sec.  1480.14  Per diem; fees for services.

    All neutrals on the Registry of Neutrals may charge a per diem and 
other pre-determined fees for services, if the amount of the fee has 
been provided in advance to FMCS. Each neutral's maximum per diem and 
other fees are set forth on a biographical sketch which will be 
available on the selection system website and which will be submitted 
to the parties who request a panel of neutrals or the appointment of a 
neutral. The neutral shall not change any fee or add charges without 
giving at least thirty (30) days advance written notice to FMCS. 
Neutrals with dual addresses must bill the parties for travel expenses 
from the least expensive business address to the hearing site.


Sec.  1480.15  Disclosure.

    Neutrals will divulge all charges to the parties and obtain 
agreement thereto immediately after selection or appointment for the 
case.


Sec.  1480.16  OANI notification.

    The OANI should be notified of any neutral's deviation from the 
policies expressed in this part. While the OANI does not resolve 
individual fee disputes, repeated complaints concerning the fees 
charged by a neutral will be brought to the attention of the Director 
for consideration. Similarly, repeated complaints by neutrals 
concerning non-payment of fees by the parties may lead to the denial of 
services or other actions by the OANI.

Subpart E--Reports and Biographical Sketches


Sec.  1480.17  Reports to OANI.

    Individuals listed on the Registry of Neutrals shall execute and 
return all documents, forms and reports required by the OANI. They 
shall also keep the OANI informed of changes of address, telephone 
numbers, availability and of any business or other connection or 
relationship which involves employment relations or which creates or 
gives the appearance of advocacy as defined in Sec.  1480.4.


Sec.  1480.18  Biographical sketches.

    The OANI will provide biographical sketches to the parties on each 
person admitted to the Registry of Neutrals from information supplied 
by applicants. Neutrals may request revision of biographical 
information at later dates to reflect changes in fees, the existence of 
additional charges, or other relevant data. The OANI reserves the right 
to decide and approve the format and content of the biographical 
sketches.

Subpart F--Complaint Procedure


Sec.  1480.19  Role of the Director of FMCS.

    FMCS will establish a complaint procedure for the user of the 
Registry of Neutrals. The complaint procedure will be administered by 
the Director of FMCS or his/her designee.


Sec.  1480.20  Agreement to adhere to the Code of Professional 
Responsibility.

    Applicants for the Registry of Neutrals will be required to execute 
a statement agreeing to adhere to the Code of Professional 
Responsibility developed by FMCS and to cooperate with any and all FMCS 
investigations, in the event a complaint is filed against the neutral.


Sec.  1480.21  Addressing Complaints.

    FMCS will address and/or investigate all complaints and take 
appropriate actions, up to and including the permanent exclusion of a 
neutral from the Registry, based on the nature and severity of the 
complaint and the results of the investigation. FMCS reserves the right 
to determine, on a case by case basis, whether it is appropriate to 
conduct an independent investigation of a complaint, if a similar 
complaint has been filed against the neutral in a different forum.

Subpart G--Accreditation of Educational Programs in ADR


Sec.  1480.22  Collaboration with universities.

    The OANI will collaborate with universities and training programs 
to institute educational programs designed to assist the applicants in 
obtaining the maximum points possible under the Point System for 
Determining Qualifications for the FMCS Registry of Neutrals. FMCS will 
make available to every institute the opportunity to apply for pre-
accreditation. Programs of educational institutions and/or training 
providers will be pre-accredited for a specific number of points under 
the Point System. During the application process, if an applicant 
provides documentation that he/she successfully completed the program, 
he/she will be awarded the number of points assigned to the educational 
institution or training provider during the pre-accreditation process.


Sec.  1480.23  Pre-accreditation examination.

    A pre-accreditation examination will include a review of the 
minimum amount of curriculum time, practicum, and the qualifications of 
the instructors. Criteria for accreditation will include:
    (a) The number of credit hours or contact hours, hours of class 
instruction, provided under the program. Classroom

[[Page 23640]]

hours may include hours conducted through on-line training.
    (b) A course of instruction that provides a coordinated and 
comprehensive overview of ADR theory and practice.
    (c) Practicum that includes a method of objective evaluation 
individualized feedback for the student.
    (d) Staff qualifications, which include but are not limited to, the 
overall staff being trained in the theory and practice of ADR 
techniques and workplace issues.


Sec.  1480.24  Review of programs.

    A review of the programs for educational institutions for the 
purpose of pre-accreditation will occur every three (3) years; a review 
of the programs for training providers for the purpose of pre-
accreditation will occur every two (2) years.


Sec.  1480.25  Training programs.

    FMCS will offer a comprehensive training program for the purpose of 
providing the applicants the opportunity to obtain the maximum number 
of points under the Point System for Determining Qualifications for the 
FMCS Registry of Neutrals. Applicants will not be required to attend 
the FMCS program, nor will applicants who attend the program be given 
preferential treatment over pre-accredited providers.

Appendix A--Schedule of Fees

    1. Application fee: $250.00 for each application (In the event 
the applicant does not obtain the minimum of 10 points necessary to 
obtain consideration of his/her application, but submits additional 
information within one year of the original application, he/she will 
not be required to pay an additional fee for consideration of the 
application.
    2. Annual listing fees for neutrals: This will be established 
based on the number of neutrals listed on the Registry of Neutrals.
    3. Request for panel of neutrals: $50.00 for each panel request 
(includes subsequent appointments).
    4. Requests for appointment of neutral: $50.00 for appointment 
when a panel is not requested.
    5. Requests for pre-accreditation: To be determined based on 
expenses and number of hours required to review the process.

Appendix B--Point System for Determining Qualifications for the FMCS 
Registry of Neutrals

    A list of the categories in which a candidate is able to obtain 
points towards selection for the FMCS Registry of Neutrals is set 
forth in this Appendix. A minimum of 10 points will be required for 
inclusion on the FMCS Registry of Neutrals.
    1. ADR experience (0-9 points, at least 1 point is required in 
this area) *
    9 points: Substantial ADR experience with large and complex 
cases of significance (large money cases, large number of complex 
issues or complex relationships between the parties, cases of 
national significance)
    7 points: Conduct or co-conduct 120 ADR procedures in employment 
dispute cases
    5 points: Conduct or co-conduct 80 employment cases or 120 other 
cases, of which 40 must be employment cases
    3 points: Conduct or co-conduct 40 employment cases or 80 other 
cases, of which 20 must be employment cases
    1 point: Conduct or co-conduct 20 employment cases or 50 other 
cases, of which 10 must be employment cases

    * ADR experience may include acting as a third party neutral in 
any dispute procedure that is used in lieu of adjudication to 
resolve issues in controversy including, but not limited to, 
settlement negotiations, conciliation, facilitation, mediation, 
fact-finding, mini-trials or any combination thereof. For the 
purpose of this application, arbitration is specifically excluded 
from the definition of alternative dispute resolution procedure. To 
count as a case, the neutral must have been present for at least one 
face-to-face, or electronic meeting, between/among participants.
    2. ADR education/training (0-5 points, at least 1 point is 
required in this area **)
    5 points: Documentation of successful completion of an 
established academic course of study in conflict resolution 
conducted by FMCS, its academic partners or other academic 
institutions, with a letter of recommendation from a faculty member 
who has observed the applicant in an ADR session, or documentation 
that the alternative dispute resolution program met equivalent 
standards as those accredited by FMCS. A course must include at 
least 200 classroom hours of instruction and role-play to be 
considered as an established course of study in conflict resolution.
    3 points: 160 hours of documented training in conflict 
resolution with proof of individualized feedback in ADR procedures 
practice or role-play
    1 point: 120 hours of documented training in conflict resolution 
with proof of individualized feedback in ADR procedures practice or 
role-play
    3. Substantive experience in roster content area (0-2 points, at 
least one point must be received in either this area or the area of 
substantive education in the roster area)
    2 points: 10 years of experience in workplace conflict 
resolution. Examples: employment law attorney, human resource 
director, labor organization representative, equal employment 
opportunity specialist
    1 point: 5 years of experience in workplace conflict resolution
    4. Substantive education in roster content area (0-2 points, at 
least one point must be received in either this area or the area of 
substantive experience in the workplace area.) **
    2 points: Possesses a significant educational background in the 
employment or dispute resolution area (degree or in roster area, 
such as labor-management relations, human resource management, 
employment law, etc.)
    1 point: Attendance in a documented introductory training 
program of at least 40 hours of classroom hours in the workplace 
area.

    ** Educators can be awarded points in these areas for teaching; 
however, they can not be awarded points for teaching the same class 
more than once; they can be awarded points for teaching more than 
one class in the area, as long as it does not cover substantially 
the same material.

John J. Toner,
Chief of Staff, Federal Mediation and Conciliation Service.
[FR Doc. 03-10959 Filed 5-2-03; 8:45 am]
BILLING CODE 6372-01-M