Promoting and expanding the use of mediation and other types of Alternative Dispute Resolution (ADR) is the centerpiece of the EEOC's Five Point Plan. The elements of the Five Point Plan are: (1) proactive prevention; (2) proficient resolution; (3) strategic enforcement and litigation; (4) promoting and expanding the use of mediation/ADR, and (5) making EEOC a model workplace. The expanded use of ADR will play a vital role in helping the agency accomplish each element of the Five Point Plan. For example, ADR will help to prevent the filing of EEO complaints and help the agency to achieve more proficient resolution of cases. ADR is part of our strategic enforcement and litigation program, and a strong internal ADR program will help to make EEOC a model workplace. EEOC seeks to develop a model workplace where employees, supervisors and managers can effectively and efficiently accomplish the mission of the agency in a harmonious environment conducive to good employment practices. The RESOLVE Program, which provides a forum for the informal resolution of a variety of employment disputes, will help the agency achieve this goal.
The RESOLVE Program offers mediation to resolve disputes as an alternative to the traditional dispute resolution processes, such as the EEO complaint process and the negotiated grievance procedure. If an employee chooses to try the RESOLVE Program to resolve a dispute, the time frame for filing a grievance at step I of the negotiated grievance procedure is suspended while he/she attempts mediation. If an employee chooses to initiate the EEO complaint process, mediation through the RESOLVE Program is available during the EEO counseling and investigative phases of that process.1
Mediation is an informal process in which a trained mediator assists the parties to reach a negotiated resolution of a workplace dispute. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties to the dispute. Instead, the mediator helps the parties to jointly explore and reconcile their differences.
EEOC is firmly committed to using the RESOLVE Program to resolve disputes fairly and quickly with an emphasis on addressing the underlying causes of the dispute. Managers, supervisors and employees can refer disputes to the program. If an employee elects to participate in ADR, his or her supervisor or manager is required to participate.
Employees are strongly encouraged to use the RESOLVE Program. The use of mediation to resolve a dispute before it results in a formal complaint or grievance benefits managers, supervisors and employees. Disputes are resolved more quickly and earlier than in other dispute resolution processes. Litigation and other costs are lower, and further complaints are avoided as parties learn to communicate better with each other. In addition, mediation is less adversarial than other processes available for resolving disputes. Mediation leads to more creative solutions and the parties are more satisfied with the mediation process and with the results. During the months or years it often takes to resolve a formal complaint or grievance, and sometimes long after it is over, a dispute can be extremely corrosive to the productivity of an office and the morale of employees. Employees have nothing to lose by trying ADR. If the dispute is not resolved through the RESOLVE Program, employees still have the right to pursue the matter through the traditional dispute resolution processes.
The program is fully accessible to individuals with disabilities. Individuals with disabilities should advise the RESOLVE Program staff during the intake process of any accommodations that are necessary for them to effectively participate in the mediation process.
This Handbook describes the RESOLVE Program and its operational procedures. It also describes the role and duties of the Chief Mediation Officer, other program staff and the mediators. The Handbook provides internal guidance and is not intended to, does not, and may not be relied upon to create any rights, or change any laws, regulations, or directives.
The use of ADR is fully consistent with EEOC's mission. It is squarely based on the statutes creating and enforced by the Commission: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; the Equal Pay Act; the Americans with Disabilities Act; and the Rehabilitation Act. The use of ADR is also predicated on the Administrative Dispute Resolution Act (ADRA), and Executive Orders 12778 and 12871. EEOC issued a Policy Statement on ADR in 1995, establishing EEOC's firm commitment to use alternative methods to resolve disputes in all of its activities, where appropriate and feasible.
The goal of the RESOLVE Program is to resolve workplace disputes at the earliest possible stage. Early resolution benefits the Commission by fostering a more harmonious workplace where managers, supervisors and employees can focus on accomplishing the mission of the agency. Early resolution of disputes also reduces the significant costs in time and resources associated with the traditional dispute resolution processes.
Specifically, the goals of the RESOLVE Program are:
The Commission's 1995 Policy Statement on alternative dispute resolution announced that any Commission sponsored ADR program will be governed by four core principles. Those core principles are explained below:
Participation in mediation is voluntary for the employee. An employee may opt out of mediation at any point prior to the resolution of a dispute. Employees who choose to participate in mediation must attend the mediation session, participate in good faith and make every reasonable effort to reach a resolution of the dispute.
On September 13, 2001, Chair Cari M. Dominguez issued a memorandum to all managers and supervisors requiring that they participate in mediation when asked to do so. All managers and supervisors must attend the mediation session, participate in good faith and make every reasonable effort to reach a resolution of the dispute.
The mediation process is confidential. Confidentiality attaches when an employee contacts the RESOLVE Program. Confidentiality allows the parties to freely engage in candid, informal discussions of their interests and concerns in order to reach the best possible resolution of the dispute. It also allows the parties to speak openly without fear that statements made during mediation will be used against them in any subsequent proceeding.
Mediation proceedings will be conducted by a neutral third party, a mediator, whose role is to facilitate resolution of the dispute. Mediators are impartial and have no stake in the outcome of the process.
If the parties resolve the dispute, the mediator will help them draft a settlement agreement. The settlement agreement is a legally binding contract that can be enforced by either party.
Employees who contact the RESOLVE Program will initially go through an intake process. During intake, program staff will provide information about the mediation process, collect information related to the dispute, provide information about other dispute resolution processes and determine whether ADR through the RESOLVE program will be offered. The intake process should be completed in 2 workdays.
The Program Assistant will explain the mediation process, including the core principles of mediation, the role of the mediator, and the role and responsibilities of the parties.
The Program Assistant will create a case file and complete an intake form containing relevant information about the dispute. All information collected during this process will remain confidential. See Exhibit I for the Intake Form.
The Program Assistant will inform all employees who contact the RESOLVE Program that except for grievances filed under the Collective Bargaining Agreement (CBA), contacting or using the ADR process to resolve a dispute does not suspend the filing requirements for other dispute resolution processes. While mediation is an expeditious process, the RESOLVE Program cannot guarantee that the mediation process will be completed prior to the expiration of the filing deadlines for other dispute resolution processes. Therefore, it is incumbent on employees to take the action necessary to preserve their rights.
To assist employees in understanding their rights and obligations under other dispute resolution processes, the Program Assistant will provide the employee with a written notice of the filing requirements for the other dispute resolution processes and their rights and responsibilities under those processes. The employee must sign a copy of the notice upon receipt. The notice covers the following processes:
Those individuals wishing to pursue an EEO complaint who have also agreed to participate in the ADR Program will be advised by the Office of Equal Opportunity (OEO) that the informal counseling period will be extended to 90 days. In the event that the matter is not resolved in the mediation process within that time period, the individual will be given a final interview by the EEO Counselor and informed of the right to file a formal complaint.
Those individuals who have a formal EEO complaint pending and opt to participate in the ADR program must notify the OEO of their decision and OEO will refer the complainant to the RESOLVE Program. The time period for completing an ongoing investigation of an EEO complaint may be extended up to an additional 90 days in order to allow the parties to participate in the ADR Program. See 29 C.F.R.§1614.108(e).
After the Program Assistant has explained the RESOLVE Program, obtained relevant information about the dispute and provided information about other dispute resolution processes, the case file will be forwarded to the Chief Mediation Officer. After consulting with both parties, the Chief Mediation Officer will then determine whether the matter will be accepted for ADR. The decision to accept or reject a dispute for ADR will be made on a case-by-case basis. However, the Chief Mediation Officer will not accept matters that are clearly brought to the RESOLVE Program for a purpose other than to make a good faith effort to resolve a genuine employment dispute.
If the Chief Mediation Officer accepts a dispute, he/she may attempt to facilitate a resolution of the dispute prior to referring the dispute to mediation, particularly disputes between two co-workers. Facilitation will not be used to resolve disputes involving discrimination claims.
The RESOLVE Program is available to resolve various types of workplace disputes. For example, disputes involving an employee's working conditions, terms and conditions of employment, reasonable accommodation, personnel actions, and allegations of employment discrimination are common disputes and issues generally eligible for ADR. However, a small number of issues and disputes are generally inappropriate for ADR and are not eligible for resolution under the RESOLVE Program, including:
In determining whether a matter is appropriate for ADR, the Chief Mediation Officer may also consider the nature and complexity of the dispute, the relationship of the parties, and the relief sought by the parties.
As noted above, if a dispute is accepted for resolution through the RESOLVE Program, supervisors and managers are required to participate in the mediation process. The Chief Mediation Officer will ascertain the management official(s) who should participate in the mediation, notify them that a dispute has been submitted to the RESOLVE program and that the dispute has been accepted. The management official who has the authority to resolve the dispute should either attend the mediation session or be available by telephone during the session.
Prior to the mediation session, all participants will be asked to sign the Agreement to Mediate, Exhibit 2, and the Confidentiality Agreement, Exhibit 3.
A mediator will be assigned to assist the parties in resolving the dispute within five days of the initial contact date. The mediator will contact the parties within five days of receiving the assignment, or within ten days of the initial contact date.
Mediations may be conducted in-person or by telephone, if the Chief Mediation Officer determines that a mediation by telephone is appropriate.
Participants in the mediation process include the parties to the dispute, the mediator, and, if not a party to the dispute, a management official with the authority to resolve the dispute.
In addition, the employee may bring a representative to participate in the ADR process. The representative may be an attorney or a union official. Both employees and their representatives, if he/she is a union official, are entitled to a reasonable amount of official time/administrative time (as appropriate) to participate in the mediation process.
"Reasonable" is defined as whatever is appropriate, under the particular circumstances of the case. The actual number of hours will vary depending on the nature and complexity of the dispute and length of the mediation process. The Chief Mediation Officer will also consider the mission of the Commission and the Commission's need to have its employees available to perform their normal duties on a regular basis. The employee and the Chief Mediation Officer, in consultation with the employee's supervisor, should arrive at a mutual understanding as to the amount of official time/administrative time to be used prior to the use of such time.
If one of the parties to a dispute is a supervisor or management official, a representative of the agency may also attend the mediation session.
The role of the parties is to present their versions of the dispute, their interests and to specify what is needed, from their perspective, to resolve the dispute and/or improve the working relationship. They must make a good faith effort to resolve the dispute. Each party should prepare for mediation by thinking about the causes of the dispute and how it can be resolved. Management officials should also determine prior to the mediation session their range of options to resolve the dispute.
The Chief Mediation Officer shall develop and maintain a list of qualified mediators. Mediators will come from three sources: the Alliance for Education in Dispute Resolution at Cornell University; the Federal Mediation and Conciliation Service (FMCS), federal shared neutrals program, and if the parties agree, volunteer EEOC mediators. Mediators from FMCS, the Alliance and shared neutrals programs may be assigned to mediate any type of dispute. Volunteer EEOC mediators will not be assigned to mediate EEO disputes.
All mediators must meet the minimum qualifications described in Chapter 3 of the Commission's Management Directive (MD)-110. Those qualifications are: (1) at least 20 hours of basic mediation skills training; (2) at least 3 co-mediations with a qualified mediator or five independent mediations and positive evaluations from a qualified trainer/evaluator; and (3) at least two verifiable references from two qualified mediators or trainer/evaluators. Mediators must also possess knowledge of federal personnel procedures, policies and practices and the laws governing federal sector EEO.
The mediator conducts the mediation session. He/she is a neutral third party with no stake in the outcome of the mediation process. The mediator helps the parties develop creative solutions to the dispute and may suggest ways of resolving the dispute. However, the mediator does not decide the dispute or impose a settlement on the parties. The mediator's sole function is to assist the parties in reaching an agreement to resolve the dispute themselves. If the parties resolve the dispute, the mediator assists the parties in drafting a settlement agreement, which becomes an enforceable contract.
The mediator shall destroy all of his/her notes taken during the mediation or in preparation for the mediation. The mediator shall also ensure that he/she has no conflict of interest with respect to the proceeding (e.g., material or financial interest in the outcome, personal friend or relative of a party, working relationship with a party), unless such interest is fully disclosed in writing to all parties and all parties agree that the mediator may mediate the case. The mediator will attempt in every case to accomplish the following objectives:
In-person mediations must take place in a location that provides a sufficient level of privacy. In some cases it may be necessary to conduct the mediation away from the workplace. The Chief Mediation Officer is responsible for securing a location for the mediation session.
Telephone mediations must also be held at a location that provides a sufficient level of privacy.
Non-EEO Disputes - If a party believes that the other party has breached the settlement agreement, he/she should report the breach to the Chief Mediation Officer within 30 days of when the party knew or should have known of the alleged breach. The Chief Mediation Officer will investigate the allegation and, if appropriate, work with agency management to enforce the agreement.
EEO Disputes - If a party believes that the other party has breached a settlement agreement which was reached during the EEO complaint process, the party should follow the procedures for breach of settlement agreements contained in 29 C.F.R. §1614.504. These procedures require a complainant to notify the agency's EEO Director, in writing, of the alleged breach within 30 days of when he/she knew or should have known of the breach. If the complainant is not satisfied with the agency's attempt to resolve the matter, he/she may file an appeal with the Office of Federal Operations for a determination of whether the agency has complied with the terms of the settlement agreement.
All employees will receive an orientation on the RESOLVE Program's procedures and the mediation process.
Case files are established and maintained by the RESOLVE Program. As mentioned above, these files are confidential. Only the Chief Mediation Officer and program staff will have access to these files.
Settlement agreements are kept on file for four years, or until the Chief Mediation Officer is certain that the agreement has been fully implemented, whichever is later.
In order to evaluate the effectiveness of the RESOLVE Program, the Chief Mediation Officer will track the use of mediation, including acceptance rates, resolution rates overall and by mediator type, the average processing time of cases from the date the employee contacted the RESOLVE Program and monetary and non-monetary benefits obtained through the program, participants will be asked to complete a customer satisfaction survey. The Program will also evaluate timeliness and cost effectiveness as compared to the traditional dispute resolution processes.
***Exhibit 1*** ADR INTAKE FORM Mediation No: I.INFORMATION ABOUT THE PARTIES Name of Employee:_____________________________________ Position and grade:___________________________________ Home Address: ______________________________________________________ ______________________________________________________ Phone no:(___)__________ Home phone (optional):(____)_____________ Fax no: (___)__________ Hours: Dates Available:______________________________________ Name of Employee's Representative:____________________ Business Address: ______________________________________________________ ______________________________________________________ ______________________________________________________ Phone no:(___)__________ Home phone (optional):(____)_____________ Fax no: (___)__________ Hours: Dates Available:______________________________________ Name of Management Official(s) involved in Dispute: _______________________________________________________ Position(s): Office Address: Phone no(s).: Previous ADR Attempts: Yes ___ No___ Have you filed any of the following? (Check all that apply) Negotiated Grievance ___ Administrative Grievance ___ Unfair Labor Practice Charge ___ EEO Complaint ___ Harassment Complaint under EEOC Order No. 560.005, Prevention and Elimination of Harassment in The Workplace ___ II. BRIEF DESCRIPTION OF THE DISPUTE Employee's Information 1.Describe the dispute(s). 2.Which management official(s) is/are involved in the dispute? How are they involved? ***Exhibit 2*** AGREEMENT TO MEDIATE Mediation No. Employee: ___________________________________ MANAGEMENT OFFICIAL(s): _______________________ This is an agreement by the parties to participate in a mediation involving ____________ and the EEOC in the above referenced complaint. The parties understand that mediation is a voluntary process, which may be terminated by the employee at any time. The parties and, if they desire, their representatives and/or attorneys, are invited to attend a mediation session. No one else may attend without the permission of the parties and the consent of the mediator(s). The mediator(s) does not function as the representative of either party. However, the mediator(s) may assist the parties in crafting a settlement agreement. The parties acknowledge that the mediator(s) possesses the discretion to terminate the mediation at any time if an impasse occurs or the mediator deems the case inappropriate for mediation. The parties recognize that mediation is a confidential process and agree to abide by the terms of the attached Confidentiality Agreement. The parties acknowledge that if a settlement is reached as a result of the mediation, the assigned mediator(s) is required to report to the Chief Mediation Officer any benefits received. This information is reported only for purposes of providing aggregate data to the EEOC for mediation program evaluation purposes, and the individual terms of the agreement will not be disclosed, except as required to obtain agency approval. _________________________________ __________________________________ Employee Date For EEOC Date _________________________________ Employee's Representative Date ***Exhibit 3*** CONFIDENTIALITY AGREEMENT Mediation No. 1. The parties agree to participate voluntarily in mediation in an effort to resolve the above- referenced dispute. 2. The parties agree that all matters discussed during the mediation are confidential, unless otherwise discoverable, and cannot be used as evidence in any subsequent administrative or judicial proceeding. Confidentiality, however, will not extend to threats of imminent physical harm or incidents of actual violence that occur during the mediation. 3. Any communications between the Chief Mediation Officer and the mediator(s) and/or the parties are considered dispute resolution communications with a neutral and will be kept confidential. 4. The parties agree not to subpoena the mediator(s) or compel the mediator(s) to produce any documents provided by a party in any pending or future administrative or judicial proceeding. The mediator(s) will not voluntarily testify on behalf of a party in any pending or future administrative or judicial proceeding. The parties further agree that the mediator(s) will be held harmless for any claim arising from the mediation process. 5. Mediation sessions will not be tape-recorded or transcribed by the EEOC, the mediator or any of the participants. All information or materials provided to or created by the mediator including all notes, records, or documents generated during the course of the mediation shall be destroyed by the mediator after the conclusion of the mediation session. Parties or their representatives are not prohibited from retaining their own notes. However, the EEOC will not maintain any such notes or records as part of its record keeping procedures. 6. If a settlement is reached by the parties, the agreement shall be reduced to writing and when signed shall be binding upon the parties to the agreement. If the dispute is not resolved through mediation, it is understood by the parties that the employee(s) has the right to pursue his/her rights under the formal dispute resolution processes, as appropriate. _____________________________________ ____________________________________ Employee Date For EEOC Date __________________________________ Employee's Representative Date1An employee can also request mediation during the hearings phase of the EEO process. However, if mediation is elected after the employee requests a hearing before an Administrative Judge (AJ), the request for mediation should be made to the AJ. The AJ can then postpone the hearing to allow time for the parties to proceed with mediation through the RESOLVE Program.