Alamo Federal Executive Board

Alternative Dispute Resolution Program Manual

Alamo Federal Executive Board

Alternative Dispute Resolution Program Manual

Table of Contents

Chapter 1Introduction4

FEB’s Mission and Vision4

Chapter 2Background6

Administrative Dispute Resolution Act6

EEOC Guidelines6

ADR Core Principles6

What is Alternative Dispute Resolution10

Mediation10

The Process Helps People Assume Ownership of the Problem11

Benefits of Mediation11

Using Shared Neutrals to Keep the Process Neutral12

Choosing to Mediate12

Chapter 3AFEB ADR Program Procedures14

Participating Federal Agency Commitment14

Assignment of the Agency Point-of-Contact14

Requesting ADR Assistance15

Intake15

Employee seeks ADR assistance15

Agency POC assembles case materials15

Formal Request for Assigned Mediators16

AFEB solicits Mediators16

Scheduling16

Mediator Assignment16

Mediators/Parties to the Dispute Confirm Schedule/Location17

Conduct Mediation17

Tracking/Reporting/Annual Requirements17

Report from Mediation18

Mediators Provide Status Report to Agency/AFEB18

Mediators Provide Annual Mediator Training/Activity Report18

Evaluation19

Chapter 4Mediator Information20

Selection20

Training Requirements20

Application Process21

Volunteer Agreement Signed and AFEB Mediator File Established22

Removal Process22

Adherence of Standards and Requirements22

Listing on Roster and Removal22

Procedure for Removal23

Suspension24

Inactive Status24

Responsibility of the Mediator to the Process24

Confidentiality24

Impartiality25

Informed Consent25

Self-Determination26

Competence26

Quality of the Process26

Role and Conduct of Mediators26

Appendix 1ADR Council Charter/Members27

Appendix 2Ethical Standards29

Appendix 3Administrative Dispute Resolution Act of 199631

Appendix 4ADR Resources and Websites38

Appendix 5Glossary of Terms42

Appendix 6Frequently Asked Questions45

Appendix 7Mediation Forms List48

CHAPTER 1

Introduction

Federal Executive Boards Mission and Vision

“Although each executive agency and its field organizations have a special mission, there are many matters on which the work of the departments converge. Among them are the management and budgetary procedures, personnel policies, recruitment efforts, office information duties and similar matters. There are opportunities to pool experience and resources, and to accomplish savings. In substantive programs there are also opportunities for a more closely coordinated approach in many activities.”

President John F. Kennedy

Presidential Directive 465

Memorandum on the Need for Greater Coordination

of Regional and Field Activities of the Government

November 13, 1961

The Alamo Federal Executive Board’s (AFEB) mission is to build partnerships for intergovernmental collaboration, creating value for the public by fostering communication, coordination and collaboration with Federal, State and local government agencies.

Since their creation, Federal Executive Boards have served as models for partnership-based government by identifying common ground and building cooperative relationships across agency lines.

There are twenty-eight FEBs across the nation in major metropolitan locations where there are high concentrations of federal agencies and federal employees. Board members are the highest ranking federal leaders in their locales and represent civilian, military, postal and law enforcement agencies. Policy direction and guidance is provided by the Office of Personnel Management (OPM). The Alamo Federal Executive Board (formerly the San Antonio Federal Executive Board) was established in 1993.

One of the functions of the FEBs is to provide cost-effective services to resolve disputes and preserve working relationships through use of Alternative Dispute Resolution (ADR).

During the past forty-eight years, the role of the FEB has been shaped to address emergent trends and identified needs across the Federal system. In 1996, the FEBs were charged with coordinating alternative dispute resolution services for their member agencies. Since this time, the FEBs commitment to the ADR service has been strengthened by both long-term results and significant cost savings realized by member utilization of ADR.

In a statement from the FEB Fiscal Year 2009 Annual Report it was acknowledged that, “FEBs provide low or no cost, high-quality mediation services to Federal agencies through the Alternative Dispute Resolution (ADR)/Shared Neutrals Program that supports the efficient resolution of disputes and formal claims. During the past year, more than 600 cases were successfully settled, resulting in an estimated cost avoidance of more than $27.3 million. Cost-avoidance measurements are based upon the study Cost Savings Associated with the Air Force Alternative Dispute Resolution Program, 1996 and have been adjusted for inflation using the Bureau of Labor Statistics inflation calculator. Facilitation services were also offered by some FEBs. In addition, FEBs offered ADR Refresher Training and Basic Mediation Training to current and new mediators.”

In 2010, as we approach the 50th anniversary of the FEB network, the Alamo FEB is rebuilding and rekindling the spirit of responsible problem-solving represented by the FEB ADR programs nationally. As such, the AFEB continues to conduct outreach to inspire and educate key pools of talent needed by government; provide cost-effective services to resolve disputes and preserve working relationships through ADR programs; and develop the Federal workforce by providing critical training opportunities and learning experiences.

Alamo Federal Executive Board

Alternative Dispute Resolution Program Manual

CHAPTER 2

Background

Administrative Dispute Resolution Act of 1996

The Federal Government expressly required Federal agencies to employ ADR in 1996 with the passage of Public Law 104-320, also known as The Administrative Dispute Resolution Act, (aka ADRA, or “The Act” ). The Act speaks to the use of ADR to offer an “inexpensive means to resolving disputes as an alternative to litigation….” Subchapter IV, Alternative Means of Dispute Resolution in the Administration Process provides definitions and instructions which have been referenced in the creation of the AFEB ADR Program Manual.

See Appendix 4 for the complete wording of the ADR Act of 1996 and Appendix 5 for a list of ADR resources and websites.

EEOC Guidelines

Since November of 1999 EEOC Regulation 29 CFR Part 1614 has required Federal agencies to make an ADR program available during the EEO pre-complaint and formal complaint processes. Management Directive 110 includes specific instructions for designing an ADR process to address EEO complaints. The directive prescribes a set of ADR Core Principles that is also the foundation of the AFEB ADR Program.

ADR Core Principles

It has been found that there are certain requirements that are necessary for the successful development of any ADR program. These requirements are sometimes referred to as "core principles." These core principles are derived from EEOC's ADR Policy Statement.

Fairness

Any program developed and implemented by an agency must be fair to the participants, both in perception and reality. Fairness should be manifested throughout the ADR proceeding by, at a minimum: providing as much information about the ADR proceeding to the parties as soon as possible; providing the right to be represented throughout the ADR proceeding; and providing an opportunity to obtain legal or technical assistance during the proceeding to any party who is not represented. Fairness also requires the following elements:

Voluntariness

Parties must knowingly and voluntarily enter into an ADR proceeding. An ADR resolution can never be viewed as valid if it is involuntary. Nor can a dispute be actually and permanently resolved if the resolution is involuntary. Unless the parties have reached a resolution willingly and voluntarily, some dissatisfaction may survive after the ADR proceeding. Such dissatisfaction could lead to dissatisfaction with other aspects of the workplace, or even to charges that the resolution was coerced or reached under duress. In addition, aggrieved parties should be assured that they are free to end the ADR process at any time, and that they retain the right to proceed with the administrative EEO process if they decide that they prefer that process to ADR and resolution has not been reached. Both parties should be reassured that no one can force a resolution on them, not agency management or EEO officials, and not the third party neutral. Finally, parties are more likely to approach a resolution voluntarily when they know of their right to representation at any time.

Neutrality

To be effective, an ADR proceeding must be impartial and must be independent of any control by either party, in both perception and reality. Using a neutral third party as a facilitator or mediator assures this impartiality. A neutral third party is one who has no stake in the outcome of the proceeding. For example, he or she might be an employee of another federal agency who knows none of the parties and whose type of work differs from that of the parties. Alternatively, he or she may be an employee within the same agency as long as he or she can remain neutral regarding the outcome of the proceeding. The agency must ensure at all times the independence and objectivity of the neutral.

Confidentiality

Confidentiality is essential to the success of all ADR proceedings. Congress recognized this fact by enhancing the confidentiality provisions contained in § 574 of ADRA, specifically exempting qualifying dispute resolution communications from disclosure under the Freedom of Information Act. Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them. To maintain that degree of confidentiality, there must be explicit limits placed on the dissemination of ADR information. For implementation and reporting purposes, the details of a resolution can be disseminated to specific offices with a need to have that information. Neither the ADRA nor EEOC's core principles require the parties to agree that a settlement must be confidential. Confidentiality must be maintained by the parties, by any agency employees involved in the ADR proceeding and in the implementation of an ADR resolution, and by any neutral third party involved in the proceeding. The EEOC encourages agencies to issue clear, written policies protecting the confidentiality of what is said and done during an ADR proceeding.

Enforceability

Enforceability is a key principle upon which a successful ADR program depends. EEOC Regulation 29 CFR Part 1614 Section 1614.504 provides that: "Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties." The regulation sets forth specific procedures for enforcing such a settlement agreement. Agreements resolving claims of employment discrimination reached through ADR are enforceable through this procedure.

Flexibility

The ADR program must be flexible enough to respond to the variety of situations individual agencies face. There is not necessarily one ADR model which will work for all of an agency's programs or all of its offices within the same program. Because agencies have different missions and cultures, they have flexibility in designing their ADR programs. Agencies must also exercise flexibility in implementing the ADR program. This flexibility will allow agencies to adapt to changing circumstances that could not have been anticipated or predicted at the time the program was initially implemented.

Training and Evaluation

An ADR program, to be successful, will require that the agency provide appropriate training and education on ADR to its employees, managers and supervisors, neutrals and other persons protected under the applicable laws. An evaluation component is essential to any ADR program and should be in place before an ADR program is implemented. The evaluation will assist in determining whether the ADR program has achieved its goals and will provide feedback on how the program might be made more efficient and achieve better results.Additional background on the use of ADR throughout the Federal system can be found at

What is Alternative Dispute Resolution?

The Administrative Dispute Resolution Act defines ADR as “any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact-finding, mini-trials, arbitration, and use of ombudsman, or any combination thereof.”

The FEB’s nationally have established ADR under a number of titles, including the Shared Neutral Program and Shared Mediator Teams. The Alamo FEB will refer to its program as simply, The AFEBADR Program. Each FEB works cooperatively with their member agencies to customize the program to the needs of the region served. The AFEB uses a shared neutral model and coordinates volunteer mediators to provide mediation services to requesting parties. Government employees who have been trained and who have experience in mediation are assigned to cases for which they do not have a conflict of interest.

Mediation

Mediation is defined as a voluntary, confidential informal process whereby a trained neutral third party; a mediator, assists the disputing parties in finding a mutually acceptable solution in a manner different from traditional methods. Unlike litigation, for example, the rules of evidence do not apply, no testimony is taken and the mediator does not decide the dispute. The term neutral is used to denote an individual who with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.

The AFEB ADR process relies on mediation as its primary means of assisting government employees address workplace disputes and grievances. The use of mediation as a dispute resolution method in the workplace has become prevalent during the past 20 years, as employers in both union and non-union settings seek to help employees address workplace conflict in a constructive manner.

The Process Helps People Assume Ownership of the Problem

Providing easily accessible mediation services for employees helps assure that individuals who are willing to address their concerns in a spirit of collaboration are likely to do so expeditiously and without great cost to themselves or their other relationships in their work place. Many individuals who have been a party to a successful mediation report have formed a stronger working relationship with their colleagues and have developed communication skills that have empowered them and often made them more skillful in handling conflicts that naturally arise in the workplace.

Benefits of Mediation

Productivity is increased as conflict is decreased.

Most workplace disputes are resolved in a few weeks, often with just one day's time spent by each party. In contrast, EEO Complaints can take years to resolve and cost hundreds of hours and many thousands of dollars.

After mediated resolutions, there are fewer repeat disputes between the same parties.

Mediations through the AFEBADR Program are free.

Requesting agenciesonly pay travel and parking costs.

The agency providing the mediator pays that employee's salary.

Relationships and morale often improve after mediation has taken place.

When the parties informally discuss their issues and vent their frustrations, they learn more about each other and how to resolve their conflicts cooperatively.

No one is forced to agree to anything. If the mediation doesn't result in agreement, the parties may seek to resolve their disputes in another forum.

The parties maintain control of the process.

Mediators work to identify and satisfy both parties' interests.

No outside party, like a judge, imposes an outcome.

There is no loser, as there is in court.

The mediators are impartial and preserve confidentiality.

Because AFEBADR Program mediators come from an outside agency, the parties feel more comfortable and assured that the process will be conducted fairly.

The parties do not know and will probably never again see the AFEBADR Programmediators after the mediation.

Using Shared Neutrals to Keep the Process Neutral

One noted concern in the development of an agency-supported mediation program is the need to assure that the process remains both confidential to the disputants and is both perceived and valued as neutral. A mediation process that is embedded into an organization’s administrative process may lose its perceived neutrality. By having volunteer mediators from a cross-section of Federal, state and localagencies serve as mediators; the AFEB is able to assure that the mediator assigned to a case will be there strictly to provide the best mediation service possible to assist the disputants.

Choosing to Mediate

Many employment disputes, including discrimination claims, lend themselves to mediation. The following types of situations are especially well suited for mediation:

Where the employee still works for the employer: The parties may be able to maintain or re-establish a good working relationship, which is obviously hard to do when the parties are engaged in adversarial litigation.

When private or sensitive matters are involved such as sexual harassment claims, the parties, especially the employer and the alleged harasser, often prefer to discuss and resolve such matters in the confidential context of mediation, without the embarrassment or discomfort of public proceedings.

When “reasonable accommodations” are sought under the Americans with Disabilities Act: the employee and employer, who are most familiar with the employee’s condition and abilities and with the functions and nature of the job, can work together constructively to find effective ways for the employee to do the essential functions of the job.

Whatever the nature of the dispute, the parties and their attorneys must have a good faith interest in trying to resolve the dispute on reasonable terms. If either party lacks such good faith going into the mediation, the chances of a resolution are highly unlikely.

Alamo Federal Executive Board