By Francine Friedman Griesing, Esq.
Who? What? When? Where? How?
Parties engaging in alternate dispute resolution expect the “neutral” arbitrator or mediator to be impartial. Reasonable stakeholders may differ, however, as to how much information a proposed neutral should disclose and the responsibilities of all participants, including parties and counsel, to ensure there is no actual or apparent conflict. The duties of all involved are complex. They may be governed by federal or state law, jurisdictional Rules of Professional Conduct, administrating organization’s requirements, party agreements, and common sense. Effective disclosures require accurate information, reliable conflict searches, detailed responses, and good judgment. It is preferable to err towards providing more rather than less information so long as disclosures do not breach confidentiality obligations to others who are not involved in the particular matter. Failure to disclose can jeopardize the process, challenge the outcome, and impugn the reputation of the third-party arbitrator or mediator. These obligations are ongoing. They arise when a prospective candidate is approached and continue throughout the ADR process. They also impact what engagements a neutral can undertake after the arbitration or mediation concludes. Although situations seem clearcut, others are ambiguous. Navigating the disclosure labyrinth can test even the most experienced and savvy neutrals.
I recently joined a panel gathered to discuss appropriate versus required revelations in ADR and whether the standards differed between arbitrators and mediators. There was considerable debate. The dialogue assumed arbitration was binding with limited grounds to challenge an award, and mediation was non-binding such that the parties exercised self-determination in assessing whether to reach agreement. On July 8, 2026, the CPR International Institute for Conflict Prevention & Resolution (“CPR Institute”) Arbitration Committee hosted an online panel, to tackle these questions. Disclosure Duties of Arbitrators and Mediators – What’s the Difference? The lively discussion, organized by Helena Tavares Erickson, Senior Vice President, CPR Institute and Corporate Secretary, featured my fellow CPR Distinguished Neutrals Viren Mascarenhas and Jack Levin, and Head of Litigation and Intellectual Property for Activision Blizzard Page Robinson.
Key themes we discussed included the reasoning behind the disclosure rules, the various sources of those rules, and the differences between disclosure obligations for arbitrators and mediators. We also discussed the role of parties and lawyers in facilitating fulsome disclosure, and the consequences if disclosures are inadequate or not current. One of the key themes discussed was the importance of communicating relationships and information that bear not only on actual bias, but also information that could impact the appearance of bias. The ability of candidates for third-party neutral engagements to share enough details to allow participants to assess impartiality depends on the information disclosed by the parties and counsel. Neutrals cannot disclose adequately if the information they have is incomplete. Neutral divulgence of relationships, direct and indirect, prior experience and relevant thought leadership depends in large measure on the information the neutral has to consider. That involves information about parties, counsel, witnesses, experts, subject matter and issues, among others. It also depends on the depth of information and reliability of the conflict search process the neutral uses. This is especially important if the neutral practices at a firm with other lawyers whose conflicts can be imputed to the neutral.
What Should Neutrals Disclose?
In determining what needs to be disclosed, neutrals should disclose enough information so a party seeking an arbitrator or mediator can assess whether the neutral appears to be unbiased. In binding arbitration, parties may have a heightened concern about neutrality compared to mediation. The Federal Arbitration Act, 9 U.S.C. Sections 1 et seq. (“FAA”), which governs most commercial arbitrations in the United States, does not specify what relationships or experience an arbitrator must share with parties. These issues come into play under the FAA if a party challenges an arbitral award for “evident partiality” under Section 10(2), as explained below. State law, which may be based upon the Revised Uniform Arbitration Act (“RUAA”), does provide direction, requiring prospective arbitrators to disclose any conflicts of interest that could affect their impartiality. For example, the Pennsylvania statute, modelled on the RUAA, requires an arbitrator prior to accepting an appointment, to make reasonable inquiry and disclosures to parties and other panel arbitrators on the matter as to any known fact that a reasonable person would consider likely to affect impartiality. Such required disclosures include personal or financial interests in the outcome, current or prior relationship with parties, their counsel or representatives, witnesses, and other appointed arbitrators. After accepting an appointment, arbitrators have a continuing duty to disclose facts to the same extent as required prior to acceptance. 42 Pa. C.S.A. Section 7321.13.
Disclosure obligations may also arise from an administrating organization, such as the American Arbitration Association or CPR Dispute Resolution Services. The goal is to unearth any information that reflects potential bias and undermines the integrity of the process. If the arbitration is court-mandated or court-annexed, the program may have specific disclosure rules. In addition, the parties’ arbitration agreement may specify the type of information sought.
Other sources exist regarding third-party mediator disclosures. The Uniform Mediation Act (“UMA”) is a model statute adopted in some jurisdictions, but not in Pennsylvania. Section 9 of UMA addresses “Mediator’s Disclosure of Conflicts of Interest” both before and after accepting an engagement. It provides, in part:
(a) Before accepting a mediation, an individual who is requested to serve as a mediator shall: (1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and (2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation.
(b) If a mediator learns any fact described in subsection (a)(1) after accepting a mediation, the mediator shall disclose it as soon as is practicable.
The Pennsylvania Mediation Act, 42 Pa. C.S.A. Section 5949 addresses the confidentiality of mediation communications and documents, but it does not address mediator disclosures. However, individual Pennsylvania courts may impose disclosure requirements for court-annexed mediation.
Absent express statutory mandates, there are alternate sources on which mediators and other stakeholders can rely. For example, Pennsylvania Rule of Professional Conduct 2.4 “Lawyer Serving as Third-Party Neutral” is instructive. Rule 2.4(a) recognizes that a lawyer serving as a third-party neutral may include acting as a mediator to assist parties (who are not the lawyer’s clients) in resolving a dispute. Rule 2.4(b) further requires that a lawyer neutral “inform unrepresented parties that the lawyer is not representing them” and ensure that parties understand the lawyer’s role as a neutral in contrast with a representational role. Comment [2] to Rule 2.4 is of most import as to disclosures. It states, in part:
Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitrators in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association [“Arbitrator Code of Ethics”] or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution [Mediator Model Standards].
The Arbitrator Code of Ethics and Mediator Model Standards include detailed guidelines specifying the types of relationships neutrals are expected to disclose before accepting an assignment and continuing during (and sometimes after) arbitration or mediation. In addition, CPR has actual and model rules reflecting similar principles. Although there are differences in the specific language of each of these sources, the focus is the same. The bottom line requirement is to disclose relationships or information that a party might reasonably view as impacting the neutral’s impartiality to serve in the dispute.
What Is the Role of Parties and Counsel in Ensuring Full Disclosure?
Garbage in; garbage out. If the prospective neutral does not receive full information from the parties and counsel, the neutral cannot make a thorough inquiry to assess conflicts. This applies in either arbitration or mediation. Although the non-binding nature of mediation often results in parties proceeding with mediators who have relationships or prior dealings with an adverse party or counsel, disclosure is still critical. One school of thought is that if your adversary recommends a particular mediator they may be more inclined to reach a resolution. An arbitrator or mediator cannot make inquiries or disclosures if they do not know all the participants.
This problem arose in a business dispute involving sophisticated parties. The mediator solicited and the parties provided a list of entities involved and their stakeholders; the mediator reported they did not have any relationships to disclose. On the morning of mediation, however, the mediator disclosed they recognized one of party’s principals as a fellow member of their religious congregation with whom they had occasional social contact. Although both parties elected to proceed after consulting counsel, the mediation did not result in settlement. The party who was not the mediator’s fellow congregant lacked confidence in the mediator’s independence. The process was tainted. If this were arbitration, the same party could have challenged the appointment if the arbitrator did not withdraw on their own or sought to vacate an unfavorable award.
Inadequate disclosure can lead to unnecessary delay and expense if the process is aborted or challenged later. It can also damage a neutral’s reputation within the legal community. When in doubt, best practice is to share information so parties can assess whether they trust the neutral’s unbiased service and feel they got a fair chance during the process even if they do not like the outcome.
As always, I welcome suggestions of topics you would like to read about in future columns.
Francine Griesing, Founder of Griesing Law, LLC, has been involved in every aspect of litigation and alternate dispute resolution over the past 40-plus years. For most of her career, she represented individual and institutional plaintiffs and defendants as an advocate in business litigation, employment, and alternate dispute resolution. With over 30 years of experience as a neutral, she now concentrates on dispute prevention and resolution. Fran is admitted to practice in Arizona, New York, Pennsylvania, Utah, and the United States Supreme Court. You can contact Fran at fgriesing@griesinglaw.com.
Reprinted with permission from the August 14, 2026 edition of the “Legal Intelligencer” (c) 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.