The Use of Alternative Dispute Resolution in NIH EEO Complaint Processing
BROCHURE: THE USE OF ALTERNATIVE DISPUTE RESOLUTION IN NIH EEO COMPLAINT PROCESSING [PDF 47K]
The agency encourages the use of alternative dispute resolution (ADR) at both the precomplaint and formal stages of the EEO complaint process. EEO and ADR staff will make every attempt to address EEO disputes as early as possible after an AP contacts an NIH EEO official.
NIH ADR ResourcesThe NIH Office of the Ombudsman/Center for Cooperative Resolution (OO/CCR) serves as the ADR provider for cases referred through the EEO process for all NIH Institutes and Centers.
Alternative Dispute Resolution (ADR) describes a variety of informal processes for resolving conflicts that emphasize collaborative problem solving and differ from traditional adjudication methods such as litigation, hearings, and agency administrative processing and appeals. ADR offers the parties the opportunity for an early, informal resolution of disputes in a mutually satisfactory fashion. ADR methods include mediation, facilitation, conciliation, and peer panels. ADR usually costs less and uses fewer resources than traditional administrative or adjudicative processes, particularly processes that include a hearing or litigation.Mediation is the preferred and most-often used ADR process for EEO disputes because it can resolve EEO disputes quickly and to the satisfaction of all the parties involved. Mediation is the intervention in a dispute of an acceptable and impartial third party who has no decision-making authority. The objective is to assist the parties to voluntarily reach an acceptable resolution. The mediator facilitates a dialogue between the parties about the important issues. Mediation works best early in the dispute process, before parties develop strong attachments to their positions. When an AP elects ADR through EEO, the neutrals will typically use mediation. However, the neutral assigned to the case may recommend using another ADR process when appropriate.
Formal Rights and ADR: An AP does not waive the right to continue with the formal EEO process by attempting ADR. If ADR is unsuccessful, the dispute may proceed to the Formal Complaint stage.
Participation in ADR
What to expect from ADR
1. Why should I consider mediation?
EEO cases, like litigation, are adversarial, time consuming, and expensive. Involved parties become committed to accusatory and/or defensive positions to defend their side. What the parties reveal in litigation has the potential to affect the case's outcome, so litigation would not allow the parties to work on their relationship or resolution. ADR is less adversarial so the parties can work on resolving the issues that matter to them.
2. How are EEO Counseling and Mediation similar?
3. How are EEO Counseling and Mediation different?
4. When does mediation work best?
Mediation can resolve EEO disputes quickly and to the satisfaction of all parties involved. It works best early in the dispute process, before parties develop strong attachments to their positions. Mediation works best when:
5. When is mediation not appropriate?
In limited cases, mediation may not be the best option for the parties. In these situations, the Agency will evaluate the mediation request more closely. The decision not to offer mediation will only occur after the dispute receives a full evaluation from the OEODM or ADR Providers. Mediation may not be appropriate under certain circumstances:
6. What advantage does an AP have if he decides to have an EEO dispute mediated?
Mediation provides customized, creative, and equitable solutions that are tailored to the specific needs of the parties. Mediation can include both EEO and non-EEO issues, and usually result in a more comprehensive resolution of all issues. Because mediation is completely voluntary, any settlement reached will be one that is acceptable to the parties.
7. How do managers benefit from mediation?
Managers benefit from mediation in many of the same ways that their employees do. They save money, make more efficient use of limited resources, and preserve the integrity of their ongoing work relationships. Managers can also be more creative when they suggest resolution possibilities than if they were in litigation.
8. Must an AP participate in mediation?
No. The process is completely voluntary. For a precomplaint to be referred to ADR, the AP must elect ADR through the OEODM. According to the EEOC, agency managers have a duty to cooperate in the ADR process once a matter is determined to be appropriate for ADR. The staff will work with the parties to adapt the ADR process so both parties find it productive.
9. Does the OO/CCR cover all cases?
The NIH Office of the Ombudsman/Center for Cooperative Resolution (OO/CCR) offers a range of ADR processes for NIH EEO cases.
10. Is mediation the only kind of ADR that's offered?
Mediation is the most commonly used form of ADR because it allows the parties to come together, have a constructive conversation about the issues affecting them, and work toward developing a resolution themselves. The ombudsman functions as a neutral, and is thus independent, flexible, voluntary, and confidential.
11. What happens if an employee goes to the Ombudsman/CCR first?
When an employee contacts an Ombudsman with an allegation of discrimination, the OO/CCR staff will inform the employee that, in order to retain his/her right to file a complaint through EEO, s/he will have to contact the OEODM within the 45-day required timeframe. ADR can be used as a pre-EEO step to resolve the issues before even invoking the EEO process. If the employee does contact the OEODM to initiate a precomplaint and elects ADR, s/he can continue to work with the same ombudsman to attempt to resolve the matter.
12. How does ADR protect relationships?
Mediation generally results in a settlement that both parties can accept and support. The process promotes better communications between the parties and encourages a respectful and cooperative relationship.
13. Will mediation work in my case?
Agreements are reached in about 80% of the cases using mediation when the parties seeking resolution have the authority to make and implement an agreement. Even when mediation does not result in an agreement, the process tends to narrow the issues, making formal litigation more manageable.
14. What happens if a case is settled through ADR?
The settlement agreement will be binding and will prevent any further action on the merits of the case before an administrative or judicial forum.
15. How does ADR save money?
Both the AP and the Agency will save money by avoiding the significant costs associated with litigation. If an attorney is retained, the fees are generally far less than the fees for litigating the same case. The Agency can often avoid the cost of the EEO investigator.
16. Is there a fee for using mediation?
17. What is the mediator's role?
The mediator's role is to facilitate a constructive conversation where the parties exchange views, identify ways of addressing their concerns and resolve the conflict. A mediator does not weigh the law and evidence and then tell the party who is right and wrong, like a judge would. Mediators do not give employees advice, nor do they serve as advocates.
18. When will the mediation begin?
Mediation will begin when the AP, management official and mediator can meet. Usually mediations are scheduled within a few weeks.
19. How long does a mediation last?
Once a joint mediation session is scheduled, a typical mediation session lasts between 2-3 hours. Many cases can be completed in one session; others require multiple sessions. The mediation can continue as long as the parties are negotiating in good faith and the mediator has determined that additional discussion may still be productive. Mediation efforts may continue even after the AP has filed a formal complaint.
20. Do the parties need an attorney in mediation?
Since each EEO case is different, the answer depends on the complexity of the case as well as the parties' own communication skills. The OO/CCR provides the AP and management official with the opportunity to directly solve a dispute without any representative present. However, if an AP is not sure about his/her ability to negotiate on his/her own behalf, s/he could seek guidance from a private attorney.
21. Who selects the mediator?
The OO/CCR will assign the case to a trained neutral from the OO/CCR or a qualified neutral from a list established by that office.
22. Where does the mediation take place?
The mediator will work with the parties to set the time and location of the mediation.
23. Is the mediation session private?
Yes. Only the parties directly involved and their representatives may attend the mediation session. Other persons may only attend with the consent of all the parties and the mediator.
24. Will the parties have to take an oath to tell the truth?
No. By agreeing to mediation, the parties are committing to act in good faith and not to mislead the other party or misstate, or obscure the facts at issue.
25. Who has the "burden of proof" during mediation?
No one. The burden of proof is a legal concept used for litigation. Mediation precludes the need to prove a case since the emphasis is on resolution, not blame or recognition of culpability.
26. Is there a record of the mediation?
The only record of the mediation is the OEODM's intake form where the AP indicates that s/he is electing ADR and, upon completion of the mediation, either a note indicating that the mediation was completed and any resulting settlement agreement. Mediation sessions emphasize confidentiality. Records received from a party during the mediation session are returned or destroyed by the mediator at the end of the mediation.
27. Is it faster to have a dispute go to court or use ADR?
Generally, using ADR is the fastest route possible. Court proceedings are cumbersome, lengthy, and often take months or years to conclude. The EEO complaint process can take many years . The mediation process normally takes a few weeks to complete.
28. If an AP has several EEO complaints, can they be mediated together?
Each request for mediation is evaluated based on its own fact pattern. Cases can be combined or mediated separately depending on the complexity of the cases and commonality of management officials.
29. May the mediator terminate the mediation?
Yes. If it appears that resolution of the dispute is unlikely, the mediator has the authority to terminate the mediation session.
30. If mediation is unsuccessful, can the AP still pursue the complaint?
If mediation is unsuccessful, the AP can still file a Formal Complaint of Discrimination. However, issues not raised during the intake of the precomplaint cannot be included in the formal complaint unless they are like or related to the original issue.
31. If mediation is unsuccessful, will I proceed to the counselor stage?
No. If the ADR attempt is unsuccessful, the case will be returned to the OEODM, where the notice of right to file formal will be issued and the Precomplaint Intake Form will be updated to include all issues raised during the precomplaint process. The AP may then proceed directly to the formal complaint stage of the EEO process.
32. What happens if only part of the precomplaint is settled during mediation?
The settlement agreement will be enforceable for that part of the complaint that is settled. The OEODM will issue to the AP the Notice of Right to File a Formal Complaint for the remaining issues.