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

What is the Alternative Dispute Resolution program?

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.

What is Mediation?

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?

Opening statement by the mediator(s):

The mediator(s) introduce themselves, outline the mediation format, and may provide rules of conduct. Parties are asked to confirm their willingness to negotiate in good faith and intention to conduct the session with common courtesy.

Opening statement by participants:

Each party makes an opening statement, which is an uninterrupted time to speak regarding the dispute. Afterwards, the mediator will restate the parties opening statements and may ask clarifying questions. The parties opening statement should include a clear description about the dispute leading to the mediation.

Agenda building:

Together, the parties will outline the disputes to be resolved, as well as any underlying issues, or other relevant information. The issues can be concerning to one or both parties.

Discussion and Resolution:

A mediator facilitates a discussion to explore issues, obtain a deeper understanding of the dispute, and develop options that satisfy all or part of the interests of the parties. Parties will be asked to think of workable, mutually satisfactory solutions or resolutions.

Caucus:

Occasionally during the discussion and resolution phase, the mediator or parties may decide it would be beneficial to meet with the mediator separately or hold a caucus. Discussions held in caucus are confidential and the mediator will not share those discussions with the other parties unless authorized to do so.

Resolution – A Written Agreement

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.

Who should be present during the ADR process?

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.

Is ADR right for you?

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.