The Office of the Secretary Office of Equal Employment Opportunity (EEO)
is instituting its Alternative Dispute Resolution (ADR) program for mediating
EEO complaints. The Equal Employment Opportunity Commission's (EEOC) regulations
at 29 Code of Federal Regulations (CFR) 1614.102(b)(2) require agencies
to establish or make available an alternative dispute resolution program
at the informal and formal stages of the EEO process.
-
Alternative Dispute Resolution is a term used to describe a variety
of approaches to resolving conflict rather than traditional methods.
The Office of the Secretary's ADR Program offers mediation as
an alternative to traditional EEO counseling for employees who believe
they have been discriminated against based on race, color, sex (includes
sexual harassment and sexual orientation), age, religion, national origin,
disability (mental and/or physical), and reprisal. The ADR program does
not diminish an individual's right to pursue his or her claim under
the 1614 process should ADR not resolve the dispute. By participating
in ADR, the precomplaint counseling period can be extended from 30 to
90 calendar days, focusing primarily on resolving the dispute.
All current employees in the Office of the Secretary, the Administration
on Aging, and the Administration for Children and Families at headquarters
and the ten federal regional cities, are covered by the program. Coverage
has been extended to include all employees nationwide. Applicants for
positions in the Office of the Secretary/AoA/ACF are also eligible for
the ADR Program.
The Alternative Dispute Resolution process is designed to settle disputes
without cost, litigation or administrative adjudication. ADR is intended
to address individual disputes within a reasonable time frame at the
informal stage and formal EEO process through the use of trained mediators
facilitating resolution. The mediator is a neutral participant who involves
both parties to find solution to conflict. The parties must actively
participate in the ADR process to achieve the ultimate goal: RESOLUTION.
Participation in ADR by the aggrieved individual is strictly voluntary.
However, when aggrieved individuals elect to participate, appropriate
management officials are required to participate in ADR just as they
are required to participate in EEO counseling.
The rights of employees and management under mediation are the same
as in the formal EEO process. When disputes are not resolved through
ADR, the aggrieved employee has the right to pursue the complaint through
the regular EEO process by filing a formal complaint.
-
The ADR program covers informal EEO complaints and formal EEO complaints
by current employees in the Office of the Secretary, the Administration
on Aging, and Administration for Children and Families at headquarters
including the ten federal regional cities: Boston, New York, Philadelphia,
Atlanta, Chicago, Dallas, Kansas City, Denver, San Francisco, and Seattle.
This includes bargaining and nonbargaining employees who present issues
covered by 29 CFR Part 1614. Participation in this process is voluntary
on the part of the aggrieved individual. Outside applicants for current
OS/AoA/ACF vacancies or positions are also eligible for participation.
The Administrative Dispute Resolution Act of 1996 (ADRA) and the EEOC
ADR Policy Statement recognize that there are instances in which ADR
may not be appropriate or feasible. The OS EEO Office has discretion
as to whether a given dispute is appropriate to offer ADR. This will
be decided on a case-by-case basis, however, we cannot decline to offer
ADR because a particular basis is involved (i.e., race, color, religion,
national origin, sex, age, disability or retaliation). We may limit
ADR if it is not geographically feasible.
-
Mediation is presently the most popular form of ADR in use by agencies
in employment related disputes. 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
of the issues in dispute.
-
The procedures for electing either mediation through ADR or traditional
EEO counseling in the informal process are outlined below.
The employee or applicant contacts the OS EEO Office to request an
EEO Counselor or Mediator within 45 calendar days of the alleged
discriminatory action�incident or personnel action�which gives rise
to a complaint. If the request is generated by a personnel action, the
OS EEO Office must be contacted within 45 calendar days of its effective
date. The Complainant has the right to representation throughout
the complaint process including counseling stage.
Complainant initially will meet with the OS EEO Counseling Coordinator
who advises the Complainant about laws, regulations and policies that
govern the complaints process. The Counseling Coordinator will:
request the Complainant to sign an election of the precomplaint
process (EEO Counseling), or election of the ADR (mediation) process.
Complainant can elect only one process;
provide the Complainant with a description of the mediation process
and an explanation of the stages in the EEO process at which ADR is
available;
advise the Complainant of all the time frames involved in both the
administrative process and the ADR process;
conduct an intake interview which outlines the EEO bases and issues
of the informal complaint.
If the ADR mediation process is chosen, the Counseling Coordinator
makes appropriate arrangements with the group providing Mediators. Mediation
extends the informal resolution period form 30 to 90 calendar days.
The average time for mediation is three sessions of three to four hours
each.
Once the Mediator has been appointed, the Counseling Coordinator will:
Brief the mediator on the issues of the complaint and/or give the
mediator the intake interview;
Contact the appropriate management official(s) to inform them of
the mediation request, explain the mediation process and the issues
to be negotiated. This will result in the designation of the appropriate
management official/settlement authority that will come to the mediation
table;
Schedule a mutual date for the mediation with all parties; and
Reserve a room in a neutral location for the mediation.
The mediator facilitates open discussion between parties in the dispute
and assists them with negotiating a mutually agreeable solution. A mediator
has no authority to impose a decision or resolution on the parties.
If mediation is successful, a settlement agreement will be signed in
accordance with the mediation and EEO processes.
If mediation is unsuccessful, the mediator will report the outcome
to the Counseling Coordinator and complete the mediation close out form.
Complainant will meet with the Counseling Coordinator to verify EEO
bases, issues, management officials, and remedies in the complaint.
The Counseling Coordinator or an EEO Counselor will close out the precomplaint
process and give Complainant a right to file letter along with two copies
of the counseling report and a formal complaint form. All information
disclosed during mediation is confidential. Mediation is also available
at the formal stage of the EEO process.
If the EEO counseling process is chosen, the Counseling Coordinator
appoints a Counselor and precomplaint counseling is conducted in accordance
with 29 CFR 1614. 105. The EEO Counselor has 30 calendar days from the
initial interview date to attempt informal resolution, unless the Complainant
agrees to an extension of no more than 60 calendar days.
The EEO Counselor will:
Advise the Complainant about the EEO complaint process under 29
CFR Part 1614 and possible election requirements;
Determine the EEO basis and issues of the potential complaint;
Conduct a limited inquiry for the purposes of furnishing information
for settle-ment efforts and determining jurisdictional questions if
a formal complaint is filed;
Seek resolution of the matter at the lowest possible level;
Document the resolution or advise the Complainant of his/her right
to file a formal discrimination complaint if resolution fails; and
Prepare a report sufficient to determine that required counseling
actions have been taken and resolve any jurisdictional questions that
may arise.
If the complaint is not resolved by a settlement agreement, the EEO
counselor will close out the precomplaint process and give Complainant
a right to file letter along with two copies of the counseling report
and a formal complaint form. Mediation is also available at the formal
stage of the EEO process.
-
The roles and responsibilities of the individuals who elect to participate
in the ADR program using mediation to settle EEO complaints are described
below.
Employee/Aggrieved Individual
An aggrieved individual can be a current employee or an outside applicant
who elects to participate in the ADR program. Participation in ADR is
voluntary. The election to participate must be in writing, and signed
by the employee. In signing the agreement to participate in ADR, the
employee also agrees to the requirements of the ADR program. It is the
employee's responsibility to provide complete, accurate information
and relevant documents to the EEO Counseling Coordinator at the intake
interview or to the EEO Counselor. The employee is entitled to representation
during the ADR process.
EEO Manager
The OS EEO Manager administers the overall EEO complaints process which
includes the ADR program. The EEO Manager also oversees implementation
and evaluation of the ADR program.
EEO Counseling Coordinator
The EEO Counseling Coordinator is the first point of contact to initiate
an EEO complaint. An intake interview is conducted with the aggrieved
employee whereby an explanation of the EEO process, including ADR, will
be provided. During the intake interview, the employee may elect the
ADR process. The EEO Counseling Coordinator arranges for a counselor,
mediator, or contract counselor.
The Counseling Coordinator will also assist in identifying the appropriate
management official to participate in the mediation.
The EEO Counseling Coordinator will be the primary contact person throughout
the precomplaint processing stage for all parties. This includes handling
of logistical arrangements for both headquarters and the regions.
If the complaint is not resolved through mediation, the EEO Counseling
Coordinator will meet with the Complainant to verify EEO bases, issues,
management officials, and remedies in the complaint. The EEO Counseling
Coordinator will either complete the informal process or assign a counselor
to issue a final counseling report with notice of right to file a formal
complaint.
EEO Counselor
The EEO Counselor will be assigned by the Counseling Coordinator if
the aggrieved employee does not elect the ADR process.
An EEO Counselor is a neutral individual who advises aggrieved persons
about the EEO complaints process. If EEO counseling is elected, the
EEO Counselor will advise the Complainant about the EEO complaint process;
determine the EEO basis(es) and issue(s); conduct a limited fact-finding
inquiry; attempt resolution; and prepare a settlement agreement or final
EEO counseling report.
Mediator
The Mediator is a trained neutral person who assists aggrieved parties
in resolving work place discrimination disputes. A mediator makes primarily
procedural suggestions regarding how parties can reach agreement. Occasionally,
a mediator may suggest some substantive options as a means of encouraging
parties to expand the range of possible resolutions under consideration.
A mediator works with parties individually, or in caucuses, to explore
acceptable resolution options or develop a proposal that might move
the parties close to resolution.
Mediators differ in their degree of directiveness or control in their
assistance in disputing parties. Regardless of how directive the mediator
is, the mediator performs the role of catalyst that enables the parties
to initiate progress toward their own resolution of issues in dispute.
Mediators are obtained through the Interagency Sharing Neutrals Program,
the HHS Mediation Program or the Federal Executive Board (FEB). All
mediators have met the minimum training and qualification requirements.
Mediators are strictly prohibited from discussing cases with anyone
outside the mediation process, including other officials who might be
involved in deciding the case. This is designed to assure that no one
who might be involved in possible later adjudi-cation will have any
knowledge of what happens during mediation. Also, nothing from the mediation
process will be added to the record, unless both parties agree subsequently.
Management/Settlement Official
The participating Management/Settlement Official (M/SO) is the individual
who has the authority to grant or deny the requested relief. Management's
participation is required in the ADR process as it is in the EEO counseling
process. The M/SO must have the authority to enter into a settlement
agreement. Where delegation of authority limits a designee from exercising
authority to settle a matter, the appropriate M/SO will be involved
in the process (i.e., sign the agreement). The M/SO must negotiate in
good faith and should seek settlement options prior to participating
in the mediation session.
Representation
Representatives for both Complainant and management are encouraged
to participate in the ADR process. Union representatives should attend
the mediation sessions when the matters in dispute involve bargaining
unit employees who have requested representation.
-
The OS EEO Office has responsibility for implementing the ADR program
and conducting appropriate training. The pilot program was implemented
through a variety of methods designed to involve customers and inform
them about mediation as an alternative to EEO counseling for informal
complaints. As stated earlier, ADR will be available during the formal
complaints process.
-
29 Code of Federal Regulations (CFR) Part 1614
Title VII of the Civil Rights Act of 1964, as amended
The Rehabilitation Act of 1973, as amended
1978 Civil Service Reform Act
Age Discrimination in Employment Act of 1967, as amended
Equal Pay Act of 1963
Administrative Dispute Resolution Act, enacted in 1990 and reauthorized
in 1996
DHHS/OS Policy on Use of Alternative Dispute Resolution, Federal
Register, October 27, 1992
Regulatory Agencies
Equal Employment Opportunity Commission: www.eeoc.gov
Office of Personnel Management: www.opm.gov
Merit Systems Protection Board: www.mspb.gov
Office of Special Counsel: www.osc.gov
Office of Government Ethics: www.usoge.gov
-
Information on the OS/AoA/ACF ADR program may be obtained by calling
the OS EEO Office on (202) 619-1564 (voice) and (202) 619-0557(TDD).
-
Further facts concerning mediating EEO complaints are provided below.
What is mediation?
Mediation is a process in which a trained neutral third party assists
in resolving a dispute, or at least narrowing and clarifying issues,
in a manner that is acceptable to both sides.
Mediation is different from traditional litigation in that it is informal,
the rules of evidence do not apply, testimony is not taken, and the
mediator does not decide the dispute. It is also different from traditional
negotiations in that a third party facilitates the discussion, sometimes
with both disputants together and sometimes with each side privately.
The Mediator, in effect, creates a new forum where the disputants can
candidly discuss their cases. The Mediator will not reveal anything
from private discussions which one side does not reveal to the other.
Thus, the Mediator often will have more information, and a more complete
picture of the problem, than either party alone. By virtue of this unique
position, the Mediator can often find options for agreement which were
not evident before. Also, the Mediator can assess the strengths and
weaknesses of each party's case and help create realistic expectations.
Why request mediation?
Disputes often arise out of communication problems or sheer complexity.
The traditional adjudication model sometimes exacerbates disputes, unnecessarily
solidifies positions, and results in protracted and costly litigation.
Mediators are trained in communication skills, and a session with a
Mediator can facilitate a constructive exchange of views and develop
previously unseen alternatives. Mediation may narrow or clarify issues
or resolve the dispute. Thus, mediation can provide a cost effective
alternative to litigation.
What is the value of mediation?
Mediation allows you to control your dispute and resolve the problem
yourself, rather than having a judge or some other official decide it
for you. Mediation is also fast and economical. Even if you do not resolve
the dispute, mediation frequently will simplify the issues and enhance
communications so that litigation proceeds more rapidly and is more
focused.
Mediation vs. compromise
People sometimes avoid mediation because they confuse it with compromise.
Requesting mediation does not mean you wish to compromise. It
means you are interested in talking in a confidential setting with the
other side to find out if the problem can be resolved without litigation.
The parties retain control. You need not agree to anything which
you do not believe is in your best interests.
Who are the mediators?
Mediators are requested from the Interagency Shared Neutrals Program
or the HHS Mediation Program, both administered by the HHS/ADR team.
All Mediators have successfully completed a 20-hour mediation skills
course and have co-mediated at least three cases with a qualified Mediator.
Most Mediators perform this function as a collateral duty, in addition
to their official duties.
What about confidentiality?
Mediators are strictly prohibited from discussing cases with anyone
outside the mediation process, including other officials who might be
involved in deciding the case. This is designed to assure that no one
who might be involved in a possible later adjudication will have any
knowledge of what happens during mediation. Also, nothing from the mediation
process will be added to the record, unless both parties agree subsequently.
Download Reader 
