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 EEOCs 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 individuals
  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 agencys 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 managements
  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 dont
  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 employees 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 agencys 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
  
  [phone]
  
  http//www.os.dhhs.gov/dab/adr
• Indian Health Service
  Diversity
  Management/Equal Employment Opportunity
  [phone]

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

51
Alternative Dispute Resolution (ADR)

• NoFEAR Act Notice
• HHS NoFEAR Act Notice
• http//www.hhs.gov/eeo/about_no_fear.html
• Public Law 107-174 (NoFEAR Act)
• http//www.hhs.gov/eeo/no_fear_act_of_2001.html
• HHS Equal Employment Opportunity Data Posted
  Pursuant to NoFEAR Act
• http//www.hhs.gov/eeo/no_fear_bullet_3.html

52
Alternative Dispute Resolution (ADR)

• Regulatory Agencies
• Equal Employment Opportunity Commission
• http//www.eeoc.gov
• Office of Personnel Management
• http//www.opm.gov
• Merit Systems Protection Board
• http//www.mspb.gov
• Office of Special Counsel
• http//www.osc.gov
• Office of Government Ethics
• http//www.usoge.gov

53
Alternative Dispute Resolution (ADR)

• Thank you for completing
• the ADR Awareness Training.
• The training certificate will not print
  automatically on the last page, so you will need
  to print, then type or write in your name and
  date. Please submit your certificate to your
  supervisor to verify your training completion of
  this course.

54
Certificate of Completion for ADR Training

• Office of Diversity Management and Equal
  Employment Opportunity
• This certifies that
• has completed the online
• training module for
• ADR Training
• (Date)