THE MEDIATION APPEALS PROGRAM
- About Mediation
- Mediation Appeals Program Brochure
- Agreement to Mediate Form
- Mediator Evaluation Form - submit online after completing mediation program
About MediationThe Merit Systems Protection Board (MSPB) Mediation Appeals Program (MAP) offers the services of the MSPB's trained and certified Mediators as an alternative to the formal appeal processes and procedures of the MSPB's regulations. Mediators facilitate a discussion between the parties to help them identify issues and barriers to agreement that will aid in resolving their disputes and settling the appeal quickly, economically, and to the benefit of all concerned. MAP is free, easy and confidential. Both parties must agree to its use before the appeal will be accepted for the MAP process, and both must agree on its resolution before any settlement is concluded. Unlike the traditional appeal process, the parties’ control the result of the case under the skilled guidance of the Mediator, who will play no role in deciding the appeal, should accord not be reached. MAP was initially launched as a pilot project in two of the MSPB's regional offices in 2002, and because of early accomplishments, it was expanded nationwide at the start of fiscal year 2005. Two years later, management of the program was moved to MSPB Headquarters under the direction of Deborah M. Miron, Director, Office of Regional Operations. MAP has become a popular and successful program, as shown by the fact that a greater number of cases have been mediated each year since the program's inception, and approximately 60% of all cases mediated settled at the conclusion of the MAP process. In fact, the advantages of MAP do not stop at the termination of mediation because experience shows that a large number of appeals that are not resolved by the mediation itself settle when they are returned to the traditional adjudication track. Moreover, based on the evaluations the parties are asked to complete at the end of each mediation, more than 95% of the participants have stated that they would use MAP again. Parties to appeals pending in any of the MSPB's regional or
field offices who are interested in participating in a MAP mediation should contact the assigned Administrative Judge. For further
information on MAP, you may ask the Administrative Judge assigned to your
appeal or contact Talethia Owens, MAP Regional
Operations Coordinator, 1615 M Street, NW, Washington DC 20419. She can
also be reached by telephone at (202) 653-6772, ext. 1840, or by e-mail at
regionaloperations@MSPB.gov. In addition, if you represent an agency or
organization that might benefit from a presentation to your group on the
Mediation Appeals Program, you may use that contact information to discuss
arranging for a session at which we can provide further information and
answer your specific questions.
MEDIATION OR ADJUDICATION - WHAT'S
THE DIFFERENCE?
Mediation provides a quick, simple and
effective way to resolve many matters appealed to the MSPB, and the parties must
be ready to use it without delay. While the MSPB is justly proud of its
adjudication program where, like in a proceeding before a court, the parties
gather evidence and make formal presentations to an Administrative Judge who
will decide the case if the parties do not settle it, mediation is a non-adversarial
dispute resolution process in which the parties seek to arrive at a mutually
satisfactory resolution using the skills of a third party neutral - a trained
and certified Mediator. To give you a better idea of whether you
may want to use MAP to try to resolve your case, some of the differences
between the two processes are listed below.
STYLES OF MEDIATION
Mediation can proceed in one format, or
sometimes a combination of formats, but you do not have to select one of them
in order to use MAP. Rather, based upon the nature of the issues and
the parties involved, it is likely that your mediation will naturally follow
the style best suited to the situation, guided by the experience gained by
the Mediator in similar situations. Remember, mediation is an
alternative to the adjudication process and therefore it is intentionally
more flexible, to suit the needs of the parties.
Generally, however, there are four major
styles of mediation.
1. Facilitative Mediation
The Facilitative style is the most utilized
style today. It is characterized by providing a framework within which
to work with parties toward a mutually acceptable agreement to end a
conflict. The style is generally an approach characterized by the
identification of the needs of the disputants, and then utilization of
interactive discussion and caucuses in an effort to find a position
acceptable to both sides in the conflict. There are basically six steps
to the process of Facilitative mediation, and they are as follows:
1.
Open the Session/Introduction
2.
Gather Information
3.
Focus on Common Ground
4.
Create Options
5.
Discuss and Consider Options
6.
Write the Agreement/Close the Session
Of the four basic commonly used styles, the
Facilitative is the most structured.
2. Evaluative Mediation
In the Evaluative style, Mediators use
their skills to help disputants evaluate the positions they espouse in the
mediation and to consider whether they are practical. The Evaluative
style can be seen as somewhat directive, and the skillful evaluative Mediator
will be careful not to impose his or her opinion, but rather will be
illustrative in helping the parties "reality test" their positions
and then helping them decide what might be the prevailing position with
regard to the facts and perceptions involved in the appeal.
In the use of this style, the Mediator will
often ask the parties to evaluate their probability of prevailing if the
dispute were to go through the formal adjudication process. This
technique can be very useful and can help them come to grips with the likely
potential results of their positions in adjudication before an Administrative
Judge. It may be particularly useful when the mediation presents
primarily legal positions and arguments, and is heavily influenced by
attorney opinion during the mediation process.
3. Transformative Mediation
The Transformative style is heavily focused
on the interactions and the communications between the disputants.
Their body language and attitudes are central to Transformative
mediation. Pointing out the manner in which disputants interact, and in
which they communicate or often fail to communicate, is the cornerstone of
this style.
This style of mediation has become highly
popularized through the U.S. Postal Service mediation method, known as
REDRESS. The effectiveness of this method, perhaps more than the
others, is the subject of widely varying and strongly held positions, both by
Mediators and the parties to mediations that use it.
4. Narrative Mediation
Finally, the Narrative style of mediation
is based on the premise that the position each party brings to the mediation
is a product of their life's discourses. The Narrative style tries to
use conversation and discussion to get the disputants to disclose, often
unwittingly, the true nature and their perception of the conflict. It
is done through "story telling" which, in effect, allows them to
express how and why they feel the way they do.
The Mediator then uses the different
stories as a basis for further discussion of the conflict. The goal is
to create an "Alternative Story" which can be substituted for the
conflict and result in not only a mutually acceptable agreement, but also in
enhanced communication going forward. The technique seems to be
especially useful when there is going to be an ongoing relationship between
the disputants after the mediation has concluded.
There is no one right style for all
mediations and all parties. All methods have their proponents and
detractors. Although Mediators certified by the MSPB remain flexible
and open to the parties' needs and suggestions, they will put their
experience to work to guide the parties toward a style or combination of
styles they believe is best suited to the particular circumstances of each individual mediation.
AGREEMENT TO MEDIATE
Before a case will be mediated, all parties
will be asked to sign an MSPB "Agreement to Mediate," which sets out their rights,
obligations and understandings concerning MAP. The parties' signature
on this form, along with the information that will be provided by the
Mediator, will assure that they are all aware of the rules and bounds of the
process. A link to that Agreement appears above for your early review.
WHAT THE PARTIES SAY ABOUT
MAP
The MSPB wants MAP to be the best mediation
program it can be. Toward that end, we ask each person who participated
in a MAP mediation, whether the appeal settled or didn't, to rate both the
Mediator and the process on specific, key areas and to provide their comments
on the Program. Here's a sampling of what they have told us:
"Great process, avoids cost of
litigation."
"Mediator was hardworking,
knowledgeable, well-versed in the law and very understanding."
"Need to continue to encourage parties
to consider using [MAP]."
"Though unsuccessful here I believe it
is an excellent process."
".may not have settled without [the Mediator]."
"Not resolved, but helped frame
possibilities. .. In general, mediation before the Board has
always helped bridge the gap even if not settled."
"This was an outstanding
process. I don't believe a decision would have been reached without
coming together."
Not every case will settle, and not every
party to every case will think that MAP moved the parties closer together,
but more than 95% of those who participated in a MAP mediation tell us that they would use the process again. Don't you
think that MAP is worth your serious consideration?
BROCHURE
Still uncertain? The MSPB has
prepared a short, helpful brochure designed to introduce the parties to MAP
and answer some basic questions about it. A quick read-through may well
answer any remaining questions you have about mediation, and if it doesn't,
it will give you the name and titles of officials who can, as well as the
contact information you may use to resolve any remaining doubts you may have.
NOW IT'S UP TO YOU
We hope that this information has helped
you decide whether MAP may be right for you as an alternative to
adjudication. Remember, though, that both parties must agree before a
case will be accepted into MAP. To express an interest in using MAP,
please contact the regional or field office with geographic jurisdiction over
your appeal. If both parties agree to participate in MAP, it is important
for them to discuss dates within the next month on which they will be
available for mediation and to suggest the location at which it might be
appropriate to hold it, so that the mediation can be set with minimum
delay. When the parties sign the
Agreement to Mediate, they will be asked to provide this information. Mediations are often scheduled at the
parties’ location or the appellant’s work site, but may be held at the
regional or field office or at one of the designated hearing sites nearest to
the parties. For a list of those
designated sites, please see the tab entitled Approved Hearing Locations on
this website. Please keep in mind that while MSPB Mediators are skilled
in assisting the parties to arrive at mutually beneficial settlements of
their disputes, if an appeal is not resolved in mediation, it will return to
the adjudication track. If this should happen, however, the Mediator
will tell the Administrative Judge nothing about the matters discussed during
mediation except that the parties were unable to resolve the appeal. You will find that MSPB Administrative
Judges are also adept at reaching settlements between the parties, and many
cases that go through MAP without reaching accord are settled after they
return to adjudication. Even where the case is resolved by a Judge's
decision, the mediation process often helps sharpen the parties' focus on the
matters truly in dispute and the resolution they seek. Finally,
remember that the majority of appeals go through the adjudication process, and that if yours is one of them, the MSPB's
record of timely, high quality adjudication and skillful use of alternative
dispute resolution methods will assure you a fair and complete chance to be
heard by a seasoned Administrative Judge.
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