Alamo Federal Executive Board
Alternative Dispute Resolution Program Manual
Alamo Federal Executive Board
Alternative Dispute Resolution Program Manual
Table of Contents
Chapter 1 Introduction 4
FEB’s Mission and Vision 4
Chapter 2 Background 6
Administrative Dispute Resolution Act 6
EEOC Guidelines 6
ADR Core Principles 6
What is Alternative Dispute Resolution 10
Mediation 10
The Process Helps People Assume Ownership of the Problem 11
Benefits of Mediation 11
Using Shared Neutrals to Keep the Process Neutral 12
Choosing to Mediate 12
Chapter 3 AFEB ADR Program Procedures 14
Participating Federal Agency Commitment 14
Assignment of the Agency Point-of-Contact 14
Requesting ADR Assistance 15
Intake 15
Employee seeks ADR assistance 15
Agency POC assembles case materials 15
Formal Request for Assigned Mediators 16
AFEB solicits Mediators 16
Scheduling 16
Mediator Assignment 16
Mediators/Parties to the Dispute Confirm Schedule/Location 17
Conduct Mediation 17
Tracking/Reporting/Annual Requirements 17
Report from Mediation 18
Mediators Provide Status Report to Agency/AFEB 18
Mediators Provide Annual Mediator Training/Activity Report 18
Evaluation 19
Chapter 4 Mediator Information 20
Selection 20
Training Requirements 20
Application Process 21
Volunteer Agreement Signed and AFEB Mediator File Established 22
Removal Process 22
Adherence of Standards and Requirements 22
Listing on Roster and Removal 22
Procedure for Removal 23
Suspension 24
Inactive Status 24
Responsibility of the Mediator to the Process 24
Confidentiality 24
Impartiality 25
Informed Consent 25
Self-Determination 26
Competence 26
Quality of the Process 26
Role and Conduct of Mediators 26
Appendix 1 ADR Council Charter/Members 27
Appendix 2 Ethical Standards 29
Appendix 3 Administrative Dispute Resolution Act of 1996 31
Appendix 4 ADR Resources and Websites 38
Appendix 5 Glossary of Terms 42
Appendix 6 Frequently Asked Questions 45
Appendix 7 Mediation Forms List 48
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.
http://www.justice.gov/adr/pdf/adra.pdf
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 http://www.opm.gov/er/adrguide/toc.asp.
http://www.eeoc.gov/federal/directives/md110/chapter3.html
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 AFEB ADR 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
s Productivity is increased as conflict is decreased.