PROGRAM SUPPORT CENTER
ALTERNATIVE DISPUTE RESOLUTION PLAN

ALTERNATE DISPUTE RESOLUTION PLAN

INTRODUCTION

The Equal Employment Opportunity Commission's (EEOC) revisions to 29 Code of Federal Regulations Part 1614, Public Sector Equal Employment Opportunity, require Federal agencies to "[E]stablish or make available an alternative dispute resolution program ..." in conjunction with the processing of complaints of discrimination.  The Office of Equal Employment Opportunity (OEEO) of the Program Support Center, in complying with the requirement has designed an Alternative Dispute Resolution (ADR) program to resolve complaints of discrimination during both the pre-complaint (counseling) stage of the process and the formal (investigation) stage of the complaint process.  The overall objective of the ADR program is to settle disputes between employees and their supervisors/managers without litigation or administrative adjudication. 

The courts and the private sector have been using ADR techniques for some time.  Organizations within these two sectors of society have reported that the use of ADR has conferred considerable savings in terms of time and costs, and has helped to maintain productive working relationships.  These are powerful incentives for the PSC to consider in establishing an ADR program.   

The OEEO presently offers mediation services on an informal basis to employees who believe that they are being discriminated against.  These services are offered only during the pre-complaint stage of the complaint process and are completely voluntary.  The PSC participates in the Department's third party "shared neutrals" program which allows it to obtain the services of trained mediators, free of charge, whenever there is a need for such services.  The neutrals program is a program administered by the Departmental Appeals Review Board (ARD) which assigns an enrolled mediator to mediate a case in another agency.  In return, when the mediator's agency needs mediation services, the ARD would assign a mediator from another agency to mediate a complaint or dispute.  All mediators in this program are certified as being qualified by the ARD.  

The PSC ADR model offers mediation and fact-finding as alternatives 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 and reprisal.  The model was designed to enhance the current EEO counseling program by resolving potential discrimination complaints at the earliest stage of the complaint process.  The model was also designed to resolve complaints at the formal (investigation) stage.  The model was designed to be flexible and may be used as a basis for tailoring or combining processes to meet the particular needs of the PSC. 

Participation in the ADR process by the complaining party is strictly voluntary.  However, when a complaining party elects to participate, the appropriate management official is required to cooperate and participate in the ADR process as he or she is required to do in EEO counseling.  The rights of employees and management officials under ADR in the pre-complaint process are the same in the formal complaint process.  If a complaining party decides to  participate in the ADR process, the agency can extend the counseling period from 30 to 90 calendar days in order to facilitate resolution of the complaint. 

When the agency is unable to resolve a dispute or complaint through ADR, the complainant is entitled to further pursue a remedy through the regular EEO complaint process by either filing a formal complaint, by requesting a hearing before an EEOC administrative judge or requesting an immediate final agency decision by the Department.

PURPOSE

The purpose of the ADR plan is to provide an alternative process which may be used to resolve allegations of employment discrimination through the PSC EEO complaints process.  The plan prescribes the procedures for providing Alternative Dispute Resolution (ADR) services, in particular mediation and fact-finding/resolution services, and delineates the responsibilities of the PSC Office of Equal Employment Opportunity (OEEO) in providing these services.

COVERAGE

This plan applies to all PSC employees and applicants for employment.  The plan will be implemented in accordance with relevant equal employment opportunity laws and regulations.

THE GOAL OF THE PSC ADR PROGRAM

The basic goal of the PSC ADR program is to promote early resolution of complaints in order to reduce the number of formal complaints filed against the agency and reduce the cost and time spent in processing these complaints.

CONFIDENTIALITY

The mediation sessions and all information and materials disclosed during the mediation are confidential.  Both parties must agree to confidentiality.  Mediators will not testify in administrative or judicial proceedings concerning what transpired during mediation or submit any report or record of the mediation discussions.  Mediators will not disclose any information obtained in separate session or caucus from one of the parties.  The confidentiality assurances set forth at section 574 of the Administrative Dispute Resolution Act applies to all PSC mediation and resolution proceedings.

ELECTION TO USE ADR

Participation in the alternative dispute resolution process is voluntary on the part of the complainant and is in addition to the existing mechanisms for processing complaints of discrimination.  Management representatives and complainants must agree in writing to participate in the mediation process.  The PSC requires managers to participate in the mediation process, thereby demonstrating a good faith effort to resolve issues of concerns.

If the complainant opts out of the ADR process before 30 days have elapsed, counseling must continue in accordance with 29 CFR 1614.105(d).  If more than 30 days have elapsed, the complainant should immediately be provided the Notice of Right to File a Complaint of Discrimination and the EEO counselor's report.

MEDIATION

Mediation is a process whereby a trained impartial third party assists in resolving a dispute, or at least narrowing and clarifying issues, in a manner that is acceptable to both sides.  Mediation differs 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.  The mediation process is driven by the disputants, and they alone determine if and how the conflict is resolved. 

Mediation will be offered when an employee or applicant for employment requests EEO counseling based on a belief that he or she has been subjected to illegal discrimination because of race, color, national origin, sex, age, religion, disability, sexual orientation or reprisal for prior participation in the EEO complaints process or for having opposed discrimination in the workplace.   Mediation may also be used in the formal or investigation stage of a complaint

When an employee or applicant contacts the OEEO or an EEO counselor about a dispute or issue with EEO implications, the OEEO staff or counselor must inform the employee or applicant that the mediation program is available as an option for resolving his or her dispute.  If the individual voluntarily elects to mediate the dispute, counseling will cease.  The EEO Complaints Manager will obtain and assign a mediator and or co-mediator.  The parties must consent to the use of the assigned mediator and the mediator must also be willing to mediate for the parties involved.

Mediation must be completed within 30 calendar days from the date of the initial mediation session (barring unforseen circumstances such as an emergency illness or death in a party's immediate family).  If unresolved issues remain at the end of the 30 day period, the mediator(s) and the employee will state these issues in writing at the final mediation session.  These issues will be preserved for a later attempt at resolution in the formal complaint stage.  Where mediation is not successful, the EEO Counselor who was first contacted or the OEEO is required to issue a Notice of Right to File Letter to the complaining party.  Upon receiving the Notice of Right to File Letter, the complaining party has fifteen (15) calendar days in which to file a formal written complaint of discrimination. 

Not all cases will be accepted for mediation.  Mediation will not be used to resolve complaints that involve removal from the Federal Service and allegations of discrimination brought by a class (group) of employees.  The OEEO Director will make the final decision to accept or reject requests for ADR.  No record of the deliberations is maintained by any of the parties, thereby affording maximum flexibility to the neutral.  However, if appropriate, a resolution or settlement of any of the issues under consideration is documented in writing and signed by the parties involved.

ROLES OF PARTICIPANTS IN THE MEDIATION PROGRAM

The ADR process may involve, but is not limited to, the following:

EEO Counselor: The use of ADR practices during the counseling period can significantly enhance the role of the EEO Counselor.  During counseling at the informal level, the EEO Counselor identifies issues and requests relief.  As required by 29 CFR part 1614, EEO Counselors must advise individuals in writing of their rights and responsibilities at the initial counseling session, including the right to request a hearing after an investigation by the Department.  When the ADR process is unsuccessful, the EEO Counselor must complete the counseling activity by issuing the Notice of Right to File a Discrimination Complaint and the EEO Counselor's report.

Third-Party Neutral:  A third-party neutral guides and assists the parties to a dispute in fashioning a resolution of the issues that is acceptable to both parties.  Although the neutral third-party guides and facilitates the mediation process, the parties and not the third-party-neutral determine the solution of the dispute.  The success of the mediation process depends, in part, on the skills of the third-party neutral in defining the issues in controversy, gathering the relevant facts, encouraging communication between the parties and suggesting possible solutions to the dispute. 

The third-party neutral/mediator is responsible for scheduling all mediation sessions with the parties and informing them of the process.  The third-party neutral establishes and maintains an environment conducive to communication and problem solving between the parties.  In addition, the third-party neutral attempts to focus the attention of the parties upon their interests and needs rather than on their rights and positions, remains neutral at all times, serves to clarify issues and assists in the search for solutions to the problems.  If the parties reach a resolution, the third-party neutral prepares the settlement agreement for the signatures of the parties.  The agreement is binding and enforceable as any other agreement.  If the matter is not resolved, the third-party neutral notifies the EEO Complaints Manager of the need to recall the EEO Counselor to complete the informal process.

OEEO Staff : The Director, Office of Equal Employment Opportunity develops and manages PSC's ADR program, including development and implementation of ADR processes and training necessary to implement them. 

The EEO Complaints Manager reviews the allegations of discrimination and the initial interview of the complainant by the EEO counselor to determine whether mediation is a viable alternative.  (S)he coordinates the assignment of third-party neutrals to cases and helps facilitate and direct the process.  The EEO Complaints Manager ensures that the appropriate management official is representing the agency in the ADR process.

Complainant or aggrieved person:

The aggrieved person is responsible for cooperating with the EEO Counselor, the OEEO staff and the agreed upon third-party neutral, in bringing to light information relevant to the dispute and working toward its resolution.  The aggrieved person may have representative(s) present at any time during the process.  To use the ADR process, the aggrieved party must agree to participate. 

Management Official:  A management official involved in the ADR process must have the authority to enter into a settlement agreement.  The management official is responsible for cooperating with the EEO Counselor, the EEO staff and the mutually agreed upon third-party neutral in presenting information relevant to the dispute and in developing and recommending solutions.  The management official may or may not have been involved in the incident or action that is the subject of the dispute.

FACT-FINDING

Fact-finding is a hybrid form of ADR which combines formal investigation with mediation in a two stage session: 

• In the first stage of the fact-finding conference, the parties  present evidence before a neutral fact-finder (usually an investigator)  who resolves disputes arising over matters of fact.  Evidence is presented in abbreviated fashion, allowing the parties and the neutral third party to evaluate the strengths and weaknesses of the  respective positions of the parties, and to further narrow and frame the issues in controversy. 
   
• In the second stage, guided and facilitated by a third-party neutral, the parties then engage in negotiations to resolve the complaint with a better understanding of the risks involved should the complaint not be resolved and end up in litigation.

The Fact-Finding Conference facilitates expeditious conduct of the investigation and at the same time affords the parties to the complaint an opportunity to informally resolve their differences as the circumstances surrounding the complaint come to light.   Fact-finding is an administrative process which does not replace processing mandated by law and regulation, i.e. a formal hearing by an administrative judge, adjudication on the merits, appeal and litigation. 

Participants in a fact-finding conference include the third party neutral investigator/mediator, the Complainant, the Complainant's representative, the Alleged Responsible Individual (ARI), the ARI's legal representative, the Designated Management Official (DMO), witnesses for the complainant and for the agency.   

Fact-finding may not be used in conjunction with complaints that allege discrimination involving removal from the Federal Service or class complaints.

The fact-finding conference will be conducted by an investigator who is also a qualified mediator.  In preparing for the fact-finding conference, the investigator will review the formal complaint of discrimination, the Report of EEO Counseling if any, and any other available documents.  From this view, the investigator will develop an investigative plan which clearly defines the allegations of discrimination and the elements of proof necessary to substantiate them.   The investigator will also develop a list of witnesses based on information in the case file, as well as a list of questions to be asked of each witness.  

At the outset of the fact-finding, the investigator will conduct a discussion with the parties to clarify issues and explore settlement options.  The investigator will take testimony from the complainant and the responsible official or responding management official.  The parties are afforded an opportunity to respond and/or rebut as well as to present documents or testimony in support of their own positions.  This will result in a clear and unequivocal understanding by the parties of the issues before them.  The investigator will subsequently interview other witnesses to obtain evidence that will either support or negate a claim of discrimination.    

The investigator determines the scope of the investigation and applies the legal elements of the standard of proof required to substantiate the allegations in a court of law.  Therefore, while a party may request that certain individuals give testimony, the investigator makes the final decision based on whether the testimony will be relevant and material to the issue of discrimination or reprisal.  The investigator may have testimony taken by a court reporter and/or recorded in order to prepare a Report of Investigation.

Once the parties have narrowed the issues in dispute with the help of the investigator, he or she will again open the process for negotiation and resolution.  If the parties fail to reach an agreement, the investigator/mediator will complete the investigative record by obtaining additional interviews and relevant documents.  The expected process should be completed in one or two days.   The investigator will forward a completed Report of Investigation to the EEO Director to be issued to the complainant. 

Participation in the fact-finding process does not terminate processing of the complaint unless the parties reach a settlement.  If the complaint is not settled, the complainant may request a hearing directly to the Equal Employment Opportunity Commission or alternatively, may request an immediate final agency decision by the Department.   Although not a mandatory process, the OEEO will recommend the fact-finding process to all individuals who have filed a formal complaint of discrimination.  Unlike EEO counseling and mediation in the informal stage, an Alleged Responsible Individual and/or a Designated Management Official participates in a fact-finding conference on a voluntary basis.   

MONITORING AND EVALUATION OF THE MEDIATION PROGRAM

The OEEO will monitor the program to ensure that objectives are met and that mediation and fact-finding services are being provided promptly and efficiently within the required time frames.  The success of the mediation program will be determined by the number of cases resolved, the feedback provided by the parties, and the general reputation of the program as viewed by employees and managers who participated in the program.  OEEO will use employee and manager feedback to improve the ADR program.

REFERENCES

• The Administrative dispute Resolution Act of 1990, reauthorized in 1996, Public Law (P.L) 101-532.
   
• Executive Order No. 12871 "Labor-Management Partnership," dated October 1, 1993.
   
• Executive Order No. 12778 "Civil Justice Reform," dated October 23, 1991.
   
• 29 Code of Federal Regulations (CFR) Part 1614, section 1614.102(b)(2)
   
• Report of the National Performance Review: "Creating a Government that works Better & Costs Less," September 7, 1993, p. 119.
   
• DHHS/OS Policy on Use of Alternative Dispute Resolution, Federal Register, October 27, 1992.

Appendix I

Procedural Steps: ADR in the complaints process

Step 1  Aggrieved party must contact OEEO within 45 calendar days of the alleged incident.

Step 2  A determination as to the feasibility of pursuing an ADR process is made at the initial contact with OEEO.

                                 

Procedural Steps: ADR in the complaints process

Step 4   Designation of Third Party Neutral Step 5   Initial Informal Contact with the Parties                     Step 6         Appropriate ADR Process is Conducted                     If a settlement is reached.                  Step 7   Appropriate Documentation of Agreement   If the ADR process results in a resolution, the terms of the agreement will be written (if appropriate) and signed by the aggrieved party, the management official, and the neutral third party.     OEEO designates a third party neutral or EEO Counselor trained in the mediation process.   Prior to the first ADR session, the designated third party neutral makes initial informal contact with the parties.     The mediation process is conducted by the third party neutral. The parties may extend the time frame for this maximum of 90 days.             Step 8   Matter Continues Pursuant to 29 CFR Part 1614.105(d)   If parties do not reach settlement within the 90-day time frame the matter will be sent back to the OEEO Director for completion pursuant to the precomplaint process.

PROGRAM SUPPORT CENTER
MEDIATION AGREEMENT

The parties agree to engage in mediation or fact-finding resolution conference in an effort to resolve their dispute.  They agree to cooperate with the third-party neutral(s) assigned to this case and to seriously consider any and all suggestions made in regard to developing a realistic solution to the problem.  The parties understand that mediation or fact-finding resolution is voluntary and may be terminated at any time.

The parties understand that the third-party neutral(s) assigned to this case will not be serving as an advocate or representative for either side or make a determination on the merits of the complaint.  The third-party neutral's sole function is to facilitate resolution of this matter.  Any agreement or decision resulting from this session will be  entered into voluntarily and by mutual assent of the parties.  Further, the parties understand they have a right to have a private representative present, if necessary, to assist them during the mediation or fact-finding resolution  process.

The parties agree that mediation sessions and the resolution part of the fact-finding resolution conferences are confidential settlement negotiations and that all offers, promises, conduct and statements, whether written or oral, made in the course of these proceedings are inadmissable in any litigation or arbitration of this dispute, as prescribed by law. 

Documents submitted to the mediator(s) and statements made during the mediation are for settlement purposes only.  The parties agree to not subpoena or require any mediator to testify or produce records, notes or work products related to settlement activities in any future proceedings and that no recordings or stenographic records will be made of mediation sessions.

No party will be bound by anything said or done during settlement discussions except for an executed  settlement agreement between the parties.  If the parties reach a settlement, the settlement agreement will be reduced to writing, and when signed by the appropriate authorities, will be binding upon all parties to the agreement.

By signature below, the parties acknowledge they have read, understand and agree to this Mediation Agreement.

________________________________               _________________   
Complainant                                                                        Date
 

________________________________               _________________   
Representative                                                                     Date
 

________________________________               _________________   
Authorized Management Official                                          Date
 

________________________________               _________________   
Representative                                                                    Date
 

________________________________               _________________  
Mediator                                                                            Date
 

________________________________               _________________   
Co-Mediator                                                                      Date
 

PSC Mediation Services

USER SURVEY
(Revised 7/29/98)

To be completed by parties and counsel upon completion of the mediation conference and returned to the Director, Office of Equal Employment Opportunity, Program Support Center, 5600 Fishers Lane, Room 16A-54, Rockville, MD, 20857; fax 301-443-1145.  Questions may be directed to the Complaints Manager at 301-443-1144, voice, or 301-443-3123 for tty callers.  (A copy of this user survey will be provided to the Departmental Appeals Board (DAB) if mediators used by the PSC are provided by the DAB Interagency Program on Sharing Neutrals.)

Name of mediator(s):   ___________________________________

Party requesting mediation services:  (Check one)

_____  Initiating party _____  Responding party  _____  Attorney  _____  Other

If "Other," who is requesting mediation services? _______________________

Date of mediation: ________ Outcome: ______ Settled ______ Not settled

                                             ______________ Date mediation will continue

Type of case:  _______________________________________________

Your feedback is very important to us.  Thank you for taking the time to help us improve our mediation services by answering the questions below.

1. Did the mediator(s) explain the process clearly to all parties?

2.a. Did you feel the mediator(s) heard and understood your concerns?

  b. Did you feel the process helped the other party understand your concerns?

  c. Did you feel the process helped you understand the other parties concerns?

3. Did the mediator(s) treat all parties equally?

4. Were you satisfied with the process of the mediation?  Why?

5. Were you satisfied with the outcome of the mediation?  Why?

6. If the neutral(s) was/were from another federal agency, did that make a difference or enhance the process?  Why?

7. If co-mediated, was it beneficial to have two mediators?  Why?

Your responses will be kept confidential and will be used for evaluative purposes only.