The Alternative Dispute Resolution (ADR)

1. The Alternative Dispute Resolution (ADR) Alternative Dispute Resolution (ADR) in Addressing Employment Discrimination Claims P.L. 107-174 Mandatory Training Module DHHS/OS/ASAM Office of Diversity Management & EEO U.S. Department of Health and Human Services

2. Alternative Dispute Resolution (ADR) ADR Awareness Training Overview The objective of this lesson is to increase your awareness of: • Alternative Dispute Resolution (ADR) and mediation, the most commonly used form of ADR • Procedures, roles and responsibilities for using mediation in EEO cases • Where to find information and resources on ADR

3. Alternative Dispute Resolution (ADR) What is ADR?

4. Alternative Dispute Resolution (ADR) Background • Alternative Dispute Resolution (ADR) is a term used to describe a variety of approaches to resolving conflict other than the traditional methods (negotiation/litigation). • ADR is a process in which a third party neutral assists the disputants in reaching an amicable resolution through the use of various techniques. • The benefits of ADR include early resolution of conflict, which may avoid the cost, delay, and unpredictability of the traditional adjudicatory processes while at the same time improving workplace communication, relationships and morale.

5. Alternative Dispute Resolution (ADR) Background (continued) • In 1990, the Administrative Dispute Resolution Act (ADRA) required each federal agency to adopt a policy on ADR use. In 1996, ADRA was reenacted as the Administrative Dispute Resolution Act of 1996 (ADR Act). • In 2000, the Equal Employment Opportunity Commission (EEOC) required all federal agencies to establish or make available an ADR program during the pre-complaint and formal complaint stages of the EEO process. • Additionally, the EEOC’s regulation, 29 C.F.R. 1614.603, requires agencies to make reasonable efforts to voluntarily settle EEO discrimination complaints as early as possible in, and throughout, the administrative process.

6. Alternative Dispute Resolution (ADR) The ADR Continuum On the next page, the most commonly-used dispute resolution processes are displayed in a continuum which, moving from left to right, reflects an increase in the amount of time and resources required by the process and a decrease in the level of the disputants’ control. The traditional processes in which the parties attempt to resolve the conflict alone (e.g., informal discussion or negotiation) are shown on the left. Typically, these processes are less time-consuming and costly, but the parties have maximum control. The alternative dispute resolution processes (ADR), in which the parties make the decisions with the assistance of a neutral third party, are in the middle, and include the most common ADR process – mediation. Generally, ADR is regarded as being relatively quick and low-cost, and leaves great control with the parties. The traditional processes in which the disputants give decision-making authority to a third party are on the right: binding arbitration, administrative adjudication and court litigation. These processes are usually more costly and protracted, and parties have the least control over either the process or the outcome.

7. Dispute Resolution Process Informal Discussion/ Negotiation Facilitation/ Conciliation/ Reg-Neg Administrative Court (ALJ) Formal Negotiation Judicial Court Fact Finding Arbitration Mediation Act alone to resolve disputes Assisted by Third-Party Neutral Have Third-Party Decision Maker Parties: $ $$$ $$$$$ Time and Resources

8. Alternative Dispute Resolution (ADR) The ADR Continuum • Employment Discrimination: ADR is offered as an alternative to traditional 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 pre-complaint counseling period can be extended from 30 to 90 calendar days, focusing primarily on resolving the dispute.

9. Alternative Dispute Resolution (ADR) Types of ADR • Mediation is the most commonly used form of ADR in federal sector employment disputes. • Mediation involves the intervention of an impartial, neutral party, who has no decision-making authority. • The objective of this intervention is to assist the parties in communicating and negotiating constructively, while attempting to reach a mutually acceptable resolution of the issues in dispute.

10. Alternative Dispute Resolution (ADR) 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 disputes. Thus, mediation can provide a cost effective alternative to litigation. • Mediators are also trained in interest-based negotiation (IBN), and often use IBN principles to help parties identify mutually beneficial solutions they may not have considered otherwise. • IBN is a problem-solving process that focuses on interests (what the parties need) rather than positions (what they say they want). Typically, it involves four basic steps: identifying issues (separating the people from the problem), identifying interests (needs, not wants), identifying options for resolution (being creative), and choosing mutually beneficial outcomes (win/win resolutions).

11. Alternative Dispute Resolution (ADR) 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 officials 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.

12. Alternative Dispute Resolution (ADR) 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 mediator and the other side to find out if the problem can be resolved without litigation. • You need not agree to anything which you do not believe is in your best interest, and you are free to discontinue the process at any time you feel it is no longer helpful. You retain control.

13. Alternative Dispute Resolution (ADR) Who are the mediators? • Mediators are requested from your OPDIV ADR program, the HHS Office of Dispute Resolution Specialist, Departmental Appeals Board (DAB), or the interagency Shared Neutrals Program (administered by the HHS Dispute Resolution Specialist, DAB). • All HHS and Shared Neutrals Mediators have completed a minimum of 20-hour mediation skills training 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. • Shared Neutrals Program Mediators come from many federal agencies. If you have concerns about neutrality or confidentiality, you can request a mediator from an agency other than your own through Shared Neutrals.

14. Alternative Dispute Resolution (ADR) What about confidentiality? • Mediators are strictly prohibited from discussing cases with anyone outside the mediation process, including their own supervisors and other officials who might be involved in deciding the case. • This confidentiality is designed to assure that no one who might be involved in any possible subsequent adjudication will have access to sensitive information, including offers, raised during mediation. Nothing from the mediation process will be added to the EEO case record unless both parties agree.

15. Alternative Dispute Resolution (ADR) Review Mediation

16. Alternative Dispute Resolution (ADR) True or False? • ADR and mediation are the same.

17. Alternative Dispute Resolution (ADR) False. Mediation is one type of ADR process. Mediation is a facilitated negotiation, which involves a neutral party who helps the disputing parties communicate and negotiate a possible settlement.

18. Alternative Dispute Resolution (ADR) True or False? • One role of the Mediator is to advise the parties about what they should do to resolve the case.

19. Alternative Dispute Resolution (ADR) False. Mediators should not give legal advice or tell parties what, in their own personal opinion, they think the parties should do. Mediators help parties communicate and explore all possible options for resolving a dispute, but should not impose their own views.

20. Alternative Dispute Resolution (ADR) True or False? • Mediation is only appropriate to resolve discrimination complaints.

21. Alternative Dispute Resolution (ADR) False. Mediation can be, and is, used for any number of types of disputes, including general workplace conflicts (work relationships, communication, job performance), contracts, and program-related issues. The HHS Dispute Resolution Specialist, DAB, is available for these types of cases too.

22. Alternative Dispute Resolution (ADR) True of False? Mediation is voluntary, so management may decline.

23. Alternative Dispute Resolution (ADR) False. If an employee elects mediation, management must participate – i.e., come to the mediation session in good faith, listen, and decide what course of action is in the agency’s best interest, but management does not have to settle and can terminate mediation at any time.

24. Alternative Dispute Resolution (ADR) True or False? • Two sisters are sitting at the kitchen table arguing over who gets the last orange. Finally, the mother comes along, yells at them to stop arguing, cuts the orange in half, and gives each a half. This is an example of the interest-based negotiation.

25. Alternative Dispute Resolution (ADR) False. This is an example of compromise – each party gets part, but not all, of what they want. Had the mother asked “Why do you want the orange?” she would have learned that one wanted the juice to drink, while the other wanted the rind to make a cake. The mother forgot to address needs, and consequently left “value” on the table, so to speak. Asking “Why?” begins the interest-based approach.

26. Alternative Dispute Resolution (ADR) True of False? • Whenever a case involves bargaining unit employees, the Mediator must notify the Union and make sure a Union representative is present before the mediation can begin.

27. Alternative Dispute Resolution (ADR) False. For formal complaints only, it is management’s responsibility to notify the Union, but the Union can waive its right to be present. If the Union is present, its interest is primarily to protect the rights of all employees under the negotiated Collective Bargaining Agreement, not to serve as the representative of the employee who requested mediation.

28. Alternative Dispute Resolution (ADR) True or False? • At the conclusion of the mediation, all parties must sign a settlement agreement drafted by the Mediator.

29. Alternative Dispute Resolution (ADR) False. Although the Mediator will draft the agreement at the parties’ request, s/he will use the parties’ own language whenever possible and either party may draft it if they wish and the other party agrees. Most agency agreements have standard language, in addition to the unique parts agreed to by the parties.

30. Alternative Dispute Resolution (ADR) True or False? • If the case is not resolved during mediation, the employee who requested mediation can continue with the EEO process.

31. Alternative Dispute Resolution (ADR) True. The Mediator will let the agency know that the case did not settle and the Counselor will then contact the employee. The Counselor will let the employee know how to proceed with the next steps of the formal EEO process.

32. Alternative Dispute Resolution (ADR) True or False? • At the conclusion of the mediation the Mediator writes a confidential report on what occurred during mediation and the agency can use that report later in the formal EEO process.

33. Alternative Dispute Resolution (ADR) False. The Mediator does not write any reports and nothing discussed by the parties with the Mediator in confidence during mediation can be used later in the formal EEO process, unless the parties both agree.

34. Alternative Dispute Resolution (ADR) True or False? • Employees have the right to have a representative at mediation, and the representative does not have to be a lawyer.

35. Alternative Dispute Resolution (ADR) True. Employees have the right to bring a representative of their choice to the mediation.

36. Alternative Dispute Resolution (ADR) True or False? • The biggest benefit of mediation is that it is fast and economical, but if it does not result in settlement it is waste of time and money.

37. Alternative Dispute Resolution (ADR) False. The biggest benefit of mediation, as reported by parties, is that it gives parties a forum in which to say what they feel is important and to decide for themselves how to resolve the issue in dispute. This is reported even when cases don’t settle. Mediation is fast, so even when the case continues in the EEO process there is little cost for the agency or party.

38. Alternative Dispute Resolution (ADR) Procedures, Roles and Responsibilities

39. Alternative Dispute Resolution (ADR) Procedures • Step 1 – Complainant contacts an EEO Office to request an EEO Counselor or Mediator within 45 calendar days of the alleged discriminatory action/incident. • Step 2 – After initial counseling (intake), complainant elects either EEO Counseling or ADR (Mediation). • Step 3 – If ADR is chosen, the Counseling Coordinator makes appropriate arrangements to assign a Mediator. Note: Mediator extends the informal resolution period form 30 to 90 calendar days. • Step 4 – Once the Mediator has been appointed, the Counseling Coordinator will provide the Mediator with information about the issues of the complaint. • Step 5 – The Counseling Coordinator will contact the appropriate management official(s) to inform them of the mediation request. Note: Mediation is mandatory for management officials when the complainant elects ADR. • Step 6 – The Counseling Coordinator will schedule a mutual date for the mediation with all parties.

40. Alternative Dispute Resolution (ADR) Procedures • The Mediator facilitates discussion between the parties in the dispute and assists them in negotiating a mutually agreeable solution, if possible. • A Mediator has no authority to impose a decision or resolution on the parties. • If mediation results in settlement, a settlement agreement is typically signed, in accordance with agency EEO requirements. • If mediation is unsuccessful, the Mediator reports the outcome to the Counseling Coordinator and completes the mediation close-out form, reporting only that the case has or has not been resolved. • 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 pre-complaint process, and give Complainant a “right-to-file” letter, along with two copies of the counseling report and a formal complaint form.

41. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants Employee/Aggrieved Individual • An aggrieved individual can be a current employee or an outside applicant who elects to participate in 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.

42. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants EEO Director • The EEO Director administers the overall EEO complaints process, which includes the ADR program. The EEO Director also oversees implementation and evaluation of the ADR program.

43. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants Regional EEO Manager • The Regional EEO Manager is the first point of contact in 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.

44. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants 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.

45. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants Mediator • The Mediator is a trained neutral person who assists aggrieved parties in resolving workplace disputes. A Mediator should not offer legal advice or give his/her own opinion, but 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 together or in separate confidential meetings to explore acceptable resolution options or develop proposals that might help the parties reach resolution.

46. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants Management/Settlement Officials • The participating Management/Settlement Official (M/SO) is the individual who has the authority to grant or deny the requested relief. Management is required to participate in the ADR process, as it is in the EEO counseling process. • The M/SO has 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 talk to other involved management officials about the agency’s interests and possible settlement options prior to the mediation.

47. Alternative Dispute Resolution (ADR) Roles and Responsibilities of Participants Representation • Representation for both complainant and management are encouraged to participate in the ADR process. • Union Representatives must be notified of the mediation session when the matters in dispute involve bargaining unit employees. • Union representatives are present to protect the interests of the union and not necessarily the interests of the employee. Unions may waive their right to participate.

48. Alternative Dispute Resolution (ADR) Additional Sources of Information

49. Alternative Dispute Resolution (ADR) Resources and Contacts • Department of Health and Human Services Office of the Dispute Resolution Specialist, Department Appeals Board (202) 565-0200 http://www.os.dhhs.gov/dab/adr • Sharing Neutrals Program (202) 565-0134 http://www.os.dhhs.gov/dab/adr • Indian Health Service Diversity Management/Equal Employment Opportunity (301) 443-1108

50. Alternative Dispute Resolution (ADR) Where do I go for more information? Discrimination Laws • Contact your local EEO Manager or the Director, DM/EEO Indian Health Service EEO Complaint process: • http://www.hhs.gov/eeo/complaint.html Whistleblower Act and Protections: • Local HR Office or visit http://www.osc.gov