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]

COMMONLY ASKED QUESTIONS & ANSWERS

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 Resources

Definitions

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.

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

• Participation in ADR is strictly voluntary for the AP. When the AP indicates willingness to participate in ADR, the OO/CCR retains the authority to determine if the matter is appropriate for ADR. The OEODM will not offer ADR to outside job applicants who were not selected for an initial appointment to the NIH.
• In order for a precomplaint to be referred to ADR through the EEO process, the AP must elect ADR on the Precomplaint Intake Form. Once an employee elects ADR, and the OO/CCR has determined that the matter is appropriate for ADR, the management officials involved must participate in the ADR process. EEOC MD 110 states that, "Agency managers must be aware that they have a duty to cooperate in an ADR process once the agency has determined that a matter is appropriate for ADR."

What to expect from ADR

• ADR processes allow parties to engage in joint problem solving.
• One of ADR's goals is to develop an agreement that resolves the EEO matter without litigation.
• When an AP elects ADR through EEO, OO/CCR neutrals will typically use mediation. However, the neutral assigned to the case may recommend using another ADR process when appropriate.
• ADR is not an adversarial process where parties each make a case to a third party who decides who is right.
• ADR processes are not legal proceedings, so normal courtroom rules do not apply.
• Neutrals will guide the ADR process so it is productive, facilitates conversation and breaks for separate meetings when necessary.
• During an ADR session, a party is entitled to consult with their representative. ADR sessions generally vary greatly in the amount of time, lasting between a few hours to a day. The OO/CCR neutral will usually begin by meeting with each party separately either in person, by phone or through electronic media.

Confidentiality

• Confidentiality and impartiality is key to the success of an ADR process. Parties are more willing to discuss the issues and options for resolving the matter when the discussions are not part of a record that can affect litigation.
• Any notes taken by the neutral will remain confidential and are destroyed when ADR is completed. The only documentation from an ADR would be either a settlement agreement, if such an agreement is reached, or communication to the OEODM if ADR did not result in a settlement agreement.
• Information gained during an ADR proceeding cannot be used at a later formal proceeding. ADR neutrals cannot be subpoenaed.
• Nothing said or done during complaint resolution through ADR can be made the subject of an EEO complaint.

Roles

• Neutrals are not judges and have no decision-making authority.
• Neutrals do not provide legal advice or counsel to any party.
• Parties may bring a representative to the ADR session. The other party and the neutral should be advised if a representative has been requested in advance, before the session, to ensure that proper arrangements are made so that the other party can also be represented.

Settlement Agreements

• Written agreements are reviewed by the appropriate administrators, as is required by IC and OEODM policy, including the Human Resources personnel, General Counsel, the IC Executive Officer, and the OEODM Director.
• The settlement agreement, if reached, is binding on all parties like any other EEO Settlement Agreement.

COMMONLY ASKED QUESTIONS & ANSWERS

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?

• The primary goal of EEO counseling and mediation is to resolve disputes.
• EEO counseling and mediation both use neutral third parties to resolve disputes.
• Settlement agreements resulting from EEO counseling and mediation are negotiated based on the interests of the parties and not the merits of the complaint.
• In general, EEO settlement agreements are enforced by the OEODM.
• Both EEO counselors and mediators are required to attend refresher training and continuing education in order to maintain their active status in their jobs.
• EEO counseling and mediation are subject to standards of confidentiality.
• If EEO counseling and mediation are unsuccessful in resolving a dispute, the right to file a formal complaint is retained.

3. How are EEO Counseling and Mediation different?

• The EEO counseling process includes a written report if a precomplaint is not resolved. There is no written record of mediation except for a written agreement, if one is reached.
• EEO counseling involves all witnesses with relevant information in a dispute. Mediation involves only the parties in dispute.
• Although rare, EEO counselors may be called as witnesses in subsequent legal proceedings. Mediators cannot be called as witnesses.
• The standard of confidentiality is stricter in mediation than in EEO counseling.
• While the regulations governing the EEO complaint process provide a time frame of up to 90 days for the completion of EEO counseling and mediation, mediation is usually completed much sooner than EEO counseling.

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:

• Working relationships will likely continue in the future. The parties might wish to avoid damaging a relationship that may preclude them from working together in the future.
• Misunderstandings exist between the parties. A skilled mediator can often facilitate communication between the employee and supervisor to improve understanding.
• Strong emotions are present . The employee and the supervisor could benefit from the presence of a neutral third party who guides the communication flow and can change the interpersonal dynamics. This creates a better climate for dispute resolution.
• The parties are flexible. The parties are willing to talk and reevaluate their position, deferring formal litigation or other adversarial procedures.
• Confidentiality is important. Fewer individuals are involved with a mediated settlement as compared to a litigated settlement.
• Cost savings are considered. Mediation involves direct negotiations between the parties in an EEO dispute, so even if legal advisors are present, their costs are generally much lower with mediation than with litigation. Additionally, the employee does not have to pay for the mediator. The NIH will incur all costs associated with retaining the mediator.
• Parties want greater flexibility in developing settlement alternatives . ADR offers more flexibility, allowing the parties to address relationships, and procedural and substantive issues that go beyond those available in traditional formal litigation proceedings.
• Parties are interested in retaining control over the case. As a voluntary participant, the AP has at least three options during the ADR process: to not settle, to settle all or part of the complaint, or to terminate the ADR process without any further obligation.
• Parties desire to keep decision-making authority with the people who know the problem best. Both the AP and the management official preserve all decision-making authority throughout the voluntary process. The mediator cannot impose any settlement on the parties.
• The dispute involves factual issues rather than legal issues. Factual issues generally include those situations involving qualifications, training, awards, work assignments, promotions, etc., that account for most EEO complaints.
• Time is important. Mediation is designed to be time efficient. Mediations can usually be scheduled within a few days and typically last less than one day.
• The parties might benefit from reality testing. Mediators act as "agents of reality" for the parties, checking out unrealistic expectations and encouraging alternative perspectives.
• Fairness is an issue but is not tied to an allegation of discrimination. An adequate remedy may not be available through the formal EEO complaint process because the basis for the complaint is not within the jurisdiction of the EEO statutes.
• The disputed issue is not worth the high litigation costs. The issue does not require the costly and timely disruptions that litigation would require.
• The dispute does not involve precedent. Issues that set a precedent are rare "first time" cases that set a new policy in NIH .
• Mediation offers a "no risk" option . If the matter is not resolved through mediation, the parties may continue to dispute the matter using other forums.
• There is a potential power imbalance. Mediation reduces the power imbalance often found between the disputing parties.

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:

• A definitive or authorized resolution of the matter is required. It may be important to litigate the case to establish clear legal precedent, such as when a particular case may change NIH policy or procedure.
• The matter significantly affects other parties not part of the same mediation process. Mediation might not be appropriate, for example, if a particular case impacts another AP's pending EEO case or involves a large scale Reduction in Force (RIF).
• A full public record of the proceeding is important.
• The Agency requires continuing jurisdiction over the matter in dispute. If the issue is expected to continue well into the future and require continuing agency support, it might not be an appropriate time to resolve the matter.
• The issues focus on prohibited personnel practices, Hatch Act violations, or matters already subject to a collective bargaining agreement.
• The dispute involves certain very sensitive issues related to EEO Complaints or regarding the health, safety, and security of NIH employees.

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?

No.

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.