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United States Department of Health & Human Services

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U. S. Department of Health and Human Services
Office of the Secretary, Administration on Aging, and Administration for Children and Families


  1. Introduction
  2. ADR Coverage
  3. Technique and Definition
  4. Procedures
  5. Roles and Responsibilities of Participants
    1. Employee/Aggrieved Individual
    2. EEO Manager
    3. EEO Counseling Coordinator
    4. EEO Counselor
    5. Mediator
    6. Management/Settlement Official
    7. Representative
  6. Implementation
  7. References and Websites
  8. Additional Information
  9. Mediation Facts
  10. Forms Used in Mediation

    Agreement to Mediate
    Mediation Completion Form


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.


  2. 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.


  4. 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.


  6. 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.


  8. 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:

    1. 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;

    2. 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;

    3. advise the Complainant of all the time frames involved in both the administrative process and the ADR process;

    4. 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:

    1. Brief the mediator on the issues of the complaint and/or give the mediator the intake interview;

    2. 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;

    3. Schedule a mutual date for the mediation with all parties; and

    4. 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:

    1. Advise the Complainant about the EEO complaint process under 29 CFR Part 1614 and possible election requirements;

    2. Determine the EEO basis and issues of the potential complaint;

    3. Conduct a limited inquiry for the purposes of furnishing information for settle-ment efforts and determining jurisdictional questions if a formal complaint is filed;

    4. Seek resolution of the matter at the lowest possible level;

    5. Document the resolution or advise the Complainant of his/her right to file a formal discrimination complaint if resolution fails; and

    6. 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.


  10. 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.


    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.


    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.


  12. 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.


    1. 29 Code of Federal Regulations (CFR) Part 1614

    2. Title VII of the Civil Rights Act of 1964, as amended

    3. The Rehabilitation Act of 1973, as amended

    4. 1978 Civil Service Reform Act

    5. Age Discrimination in Employment Act of 1967, as amended

    6. Equal Pay Act of 1963

    7. Administrative Dispute Resolution Act, enacted in 1990 and reauthorized in 1996

    8. DHHS/OS Policy on Use of Alternative Dispute Resolution, Federal Register, October 27, 1992

    Regulatory Agencies

    Equal Employment Opportunity Commission:

    Office of Personnel Management:

    Merit Systems Protection Board:

    Office of Special Counsel:

    Office of Government Ethics:


  15. 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).


  17. 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.

Last Updated: July 1, 2004


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