EEO- Alternate Dispute Resolution

In October 1996, the Administrative Dispute Resolution (ADR) Act was reauthorized. The ADR Act and Department of Defense (DoD) Directive 5145.5 requires the establishment of capabilities to handle disputes using ADR processes, and encourages the expanded use of ADR.

What is Mediation?

Mediation is one of many voluntary dispute resolution techniques collectively called Alternative Dispute Resolution or ADR.

In mediation, a neutral third-party assists the opposing parties to reach a voluntary, negotiated resolution to a charge of discrimination.

Mediation gives the parties the opportunity to discuss the dispute, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into solutions in the form of a settlement agreement.

A mediator does not impose a decision on the parties. Instead, the mediator helps the parties to agree on a mutually acceptable resolution.

How does ADR Work?

After contacting the Virginia National Guard EEO office to request counseling, an EEO professional may offer you the option of mediating your issue(s) using mediation instead of EEO counseling. It is your choice.

If you elect mediation, management will identify the management official who will participate in the mediation with you and the mediator. The management official attending the mediation session will have knowledge of the dispute and be authorized to resolve it. Either party may have an attorney or other representation but it is not mandatory.

Every effort will be made to schedule your mediation within two to three weeks from the date of your election to mediate.

The process starts with the mediator explaining how mediation works and answering your questions. During the mediation session, the mediator guides a discussion between you and the designated management official.

If mediation is successful, the terms agreed to are written down in a settlement agreement that is binding on all parties.

If mediation is unsuccessful, you are given the right to file a formal complaint of discrimination.

Why should you consider in participating in mediation?

Fair and Neutral – You and the designated management official have equal say in the process and both of you – not the mediator – decide the terms of the settlement. Guilt or innocence is not determined.

Saves Time – Coordinating all parties’ schedules usually takes longer than mediation. Many mediations are completed in one meeting. Legal or other representation is optional but not required.

Confidential – All parties sign a confidentiality agreement. Discussion that takes place during mediation will not be revealed to anyone. After the mediation is over, the mediator destroys all of the discussion notes if there are any.

Avoids Lengthy Litigation – It takes 30 to 90 calendar days for counseling at the pre-complaint level and more than a year to have a formal complaint processed and the outcome at both stages of the complaint process is uncertain. Mediation is quick and the outcome is a settlement agreement or the right to file a formal complaint.

Fosters Cooperation – Mediation fosters a problem-solving approach to disputes, which enables the parties involved to use the techniques learned to reduce future workplace disruptions. Pre-complaint counseling and formal complaint investigations gather facts but the underlying problems may remain because they are not discussed.

Improves Communications – Mediation provides a neutral and confidential setting where both parties can openly and confidentially discuss their views on the underlying dispute. Parties share information, which can lead to a better understanding of each other’s perspectives and mutually satisfactory resolutions.

Design Your Own Solution – A mediator assists you and the designated management official in voluntarily reaching a mutually beneficial resolution. Mediation can resolve all underlying issues important to the parties, not just the legal dispute.

At what point in the complaint process is it best to request mediation?

Any resolution reached during mediation is documented in the form of a settlement agreement, which is a written contract between you and the Virginia National Guard. The settlement agreement is signed by you and the designated management official. This contract explains your rights in detail if Virginia National Guard does not comply with what it agreed to do. If you believe Virginia National Guard has not complied with the terms of settlement agreement, which is called a breach, you will need to contact the Virginia National Guard State Equal Employment Manager who will assign an EEO Specialist to investigate the allegation of breach to determine if the agreement was breached.

What happens if management does not comply with the resolution reached in mediation?

What are the similarities between mediation and EEO counseling?

Mediation and counseling ideally should be completed within 30 calendar days but cannot exceed 90 calendar days. Mediation however is usually completed in less time. With mediation and counseling, resolution takes the form of a settlement agreement signed by all parties that is legally binding. Whether you elect mediation or counseling, your right to file a formal complaint is guaranteed if resolution is not reached.

What are the differences between mediation and EEO counseling?

With mediation, witnesses are not called. It is just you and the designated management official working with a neutral mediator who is experienced in resolving disputes. The mediator is focused on facilitating a discussion to find solutions to the dispute with you and the designated management official. With counseling, the EEO Counselor gathers the facts from you and other witness individually then shares what s/he found out with you and management individually to see if the dispute can be resolved. There is a high success rate with mediation; most disputes are resolved. There is a low success rate with counseling; most disputes are not resolved. Complainants who are not satisfied with the information found out during the EEO Counselor’s inquiry file a formal complaint. With mediation, a settlement agreement is crafted by the parties involved in the mediation. With counseling, a third party crafts the agreement.

Documents

MEDIATOR_FACILITATOR EVALUATION FORM

REQUEST FOR MEDIATION OF PRE-COMPLAINT

Virginia National Guard Sample Settlement Agreement Template

CNGBM 0402.01 ALTERNATIVE DISPUTE RESOLUTION PROCEDURES