Benefits of using Alternative Dispute resolution for Equal Employment Opportunity complaints

Federal regulations require agencies to establish or make available an Alternative Dispute Resolution (ADR) Program for both the pre-complaint and the formal equal employment opportunity (EEO) complaint processes.  (See 29 C.F.R. § 1614.102(b)(2)). 

ADR encompasses a variety of problem-solving processes designed to assist parties with resolving their disputes collaboratively, and provides an informal and speedy alternative to the traditional EEO complaint process.  The preferred method of ADR utilized by the Department of Justice (DOJ) is mediation.

What is Mediation?

Mediation is a fast inexpensive way to resolve disputes.   At DOJ, mediation is typically facilitated through the DOJ Mediator Corps (https://www.justice.gov/jmd/doj-mediator-corps), which uses third parties known as mediators to facilitate resolution. Mediators have been trained to help both parties reach a voluntary agreement.  Mediators cannot make decisions or force decisions on the parties to the dispute   The DOJ Mediator Corps is comprised of collateral duty mediators from across DOJ Components and is managed by the Federal Bureau of Investigation Office of EEO.

How Does Mediation Work?

The process usually begins with a joint session. During the first meeting, the lead or co-mediator explains the process and answers questions. After the parties have told their side of the story, the mediator may ask for clarification or elaboration on particular issues. Following the joint session, the lead or co-mediator may meet with each party separately to discuss the issues in greater detail, and to gain a better sense of how the parties would like to resolve the dispute. In these meetings, the lead or co-mediator helps the parties try to find an appropriate way to solve their problems. If successful, at the end of the process, a detailed written agreement is developed and signed by both parties.

Why Should You Use Mediation?

While conflict is a normal part of our daily lives, it is often uncomfortable and counterproductive in the workplace. When you find yourself in a dispute with a fellow employee, manager, or other colleague, mediation can help you resolve issues in a private, confidential, and timely manner.

Reasons for Using ADR/Mediation Include:

• Maximizes cost effectiveness
• Reduces stress
• Opens lines of communication
• Resolves conflict without formal complaint activity
• Promotes organizational effectiveness
• Reduces processing time allowing employees to return to a productive work life faster
• Empowers parties to take an active role in the resolution process
• Provides confidentiality
• Retains your rights to pursue the EEO dispute formally
• Achieves justice and fosters equal opportunity in the workplace.

How Does Mediation Work in the EEO Complaint Process?

When you want to file a complaint, the first step is to seek an EEO counselor. After the initial interview and some management contact, the counselor may decide that this case is one that may be appropriate for mediation. The counselor will look at several factors, including whether: (1) the situation involves continuing relationships, (2) the desire of the parties to settle the dispute confidentially and informally, (3) the parties’ expressed interest in taking part in shaping an agreement, (4) the subject matter of the case, and (5) the potential for setting a precedent.

Who Should Be at the Table During Mediation?

In addition to the mediator, there will be a management representative and the aggrieved party. Either party can represent themselves or may have a legal representative present. However, the parties who participate in the mediation session should have the authority and ability to enter a resolution of the dispute.

DOJ Mediator Corps

The DOJ Mediator Corps Program, with the expertise of approximately 110 collateral duty mediators from all DOJ Components, provides an invaluable means of informal resolution to address and, when possible, resolve complaints of employment discrimination.  It is operationally managed by the Federal Bureau of Investigation Office of Equal Employment Opportunity (EEO) with support from DOJ Component EEO Offices, and directly satisfies federal regulations to establish or make available an Alternative Dispute Resolution program for both the pre-complaint and the formal EEO complaint processes.  This is a no-cost program that can be used as an integral part of the EEO complaint process and overall efforts to create model EEO programs.  For additional information, please contact your servicing DOJ Component EEO Office.

FPAC has the discretion to determine whether a given dispute is appropriate for ADR in accordance with Departmental Regulation 4710-001, “Alternative Dispute Resolution.”

The objective of the program is to resolve EEO related disputes at the earliest possible stage of the EEO complaint process. Early resolution benefits FPAC-BC employees by supporting a positive workplace atmosphere, enhancing communication, trust, reducing costs associated with formal EEO complaint processing, prolonged litigation, and increases employee morale. Employees, former employees, and applicants for employment, are strongly encouraged to use ADR for all resolution attempts throughout the EEO complaint process. In addition, executives, supervisors and managers have a duty to participate in ADR to resolve workplace disputes.

ADR may be requested during the informal and formal stages of the process

Once ADR is elected as the method of resolution during the informal stage of the process, the EEO counselor will conduct the initial counseling session, identify claims, and fully inform the individual of their rights, to include the option to either elect traditional counseling or ADR. You may not change your election once the process starts. Counselors must inform individuals that if the ADR process is not successful, they will still maintain their right to file a formal complaint. All parties are encouraged to continue attempts to resolve disputes throughout the complaint process, whether through ADR or any other means of informal settlement.

Mediation is an ADR technique and process whereby a neutral third-party explores and clarifies a dispute and assists in resolving the dispute in a manner acceptable to both parties. Mediation is different from litigation in that it is informal, the parties decide how to resolve the dispute, the rules of evidence do not apply, and testimony is not taken.

Why Request Mediation?

Mediation acknowledges the parties’ perspectives and concerns in a conflict and focuses on resolving problems in a constructive manner and finding workable solutions to the dispute, rather than on the cause or who is at fault. Further, mediation saves time and resources, as well as the emotional burden of unsolved conflict in the workplace.

People sometimes avoid mediation due to the belief it requires forced compromise;however, requesting mediation does not require a resolution by any specific method or provision. Rather, it only requires parties to talk in a confidential setting to determine whether the dispute can be resolved without litigation. The parties retain control throughout the mediation and are never required to agree to anything they believe is not in their best interest. In fact, the parties may withdraw from the mediation at any time.

Mediation offers the parties an opportunity to be heard, develop new ways of dealing with a dispute, and create their own solution.

Who is the Mediator?

A mediator is a trained professional in conflict resolution who serves as a neutral third party and does not render a decision on the merits of the dispute. The mediator’s role is to create a safe environment where the parties can openly discuss their dispute. The mediator will facilitate discussions with both parties present and may also speak to each party in private during a caucus. The mediator will not reveal anything from caucuses that either party does not want revealed. As a result, the mediator may have more information, or a more complete picture of the issues than either party alone and can help identify possible solutions. In addition, a mediator may educate the parties on the applicable standards, discuss the strengths and weakness of each party’s position, and help create realistic expectations.

Is Mediation Confidential?

Conversations and materials produced during a mediation session are confidential. The mediator will not disclose or discuss with anyone outside of the mediation session anything said unless approval or guidance is necessary from CREEOD, OHRM or Official of General Counsel prior to approval of an agreement term. Prior to beginning mediation, the parties agree in writing not to disclose any information regarding the mediation without mutual consent between the parties. However, confidentiality has limits and will not be afforded to threats of imminent physical harm or criminal activity.

Mediation is Not Litigation and Not an Investigation

Mediators do not determine fault or liability. They do not uncover facts, take testimony, or determine the evidentiary value or admissibility of documents. They also do not provide legal advice. Rather, they provide an opportunity for the parties to discuss their dispute and attempt resolution.

What happens during the Mediation Process?

If the parties agree to a mutually acceptable resolution to a dispute during mediation, the resolution is reduced to writing and all parties sign a settlement agreement. The settlement only becomes effective and binding following execution by both parties. A settlement agreement should set forth the specific responsibilities or actions of each party and how they will conduct themselves in the future. Therefore, a settlement agreement should be comprehensive and specific.

In the case of an Equal Employment Opportunity (EEO) complaint, informal or formal, the resolution agreement reflects the resolution of the EEO complaint. When no resolution occurs during a mediation for an EEO complaint, the outcome is documented, and the aggrieved person or complainant has the right to continue with the EEO process. The case is returned to the counselor for close out and issuance of a Notice of Right to File (NRF) a formal complaint notification.

At a minimum, a mediation session will include the aggrieved person, the responsible management official (optional) a resolving official and a neutral mediator. If the aggrieved person has a representative or attorney, then FPAC -BC has the right to also bring a representative from the Office of General Counsel. In rare situations, members of the CREEOD may sit in as observers.

To assist you in deciding whether or not ADR is an appropriate process for your dispute, you should consider the following:

1. Will you have a continuing workplace relationship with the alleged official to the dispute?
2. Do you want to settle your dispute confidentially and informally?
3. Do you want to have a voice in resolving the dispute?

For additional information regarding ADR, please contact the Equal Employment Complaints Processing Resolution Branch at (202) 572-5826.