Ask The Lawyer

By Debra Roth

Using alternative dispute resolution

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The Equal Employment Opportunity Commission since 1999 has required agencies to offer alternative dispute resolution (ADR) to employees as a means to resolve both formal and informal EEO complaints. But ADR techniques are an option for nearly all types of workplace disputes.

Agencies can use ADR in place of more formal litigation to resolve disputes. Authorized under the 1996 Alternative Dispute Resolution Act, ADR consists of a number of dispute-solving programs generally involving a neutral third party to help the conflicting parties find a mutually agreeable solution.

The most commonly used form of ADR is mediation. Generally, a trained mediator with no decision-making authority meets with the conflicting parties over one or two days to identify issues in the dispute and acts as a catalyst to explore options and arrive at a mutually agreeable resolution. At the conclusion of a successful session, the mediator will provide the parties with a confidential settlement agreement.

The mediator must be acceptable to both parties involved in the dispute and have no conflict of interest. It is the mediator’s responsibility to ensure civility during the sessions, and provide a supportive, neutral venue for open and productive discussion. The process is voluntary, and either party can terminate the session at any time.

As a management representative at mediation proceedings, you have specific responsibilities. Before entering the session, you should have a clear understanding of the issues at hand and be prepared to state the agency’s position. While you should clearly indicate management’s position, be sure to actively listen and work with the opposing party to develop solid resolutions to the problems. If a settlement agreement is drafted, it is your responsibility to ensure that its terms are carried out by the conflicting parties.

One of the attractions of mediation and other forms of ADR is confidentiality. Disputing parties and mediators must maintain the confidentiality of all discussions, unless all parties agree in writing to forgo confidentiality. The ADR process does not produce any case documentation and all notes, records and transcripts must be destroyed at its conclusion. Only the settlement agreement, if reached, is kept.

A court may order disclosure of confidential ADR discussions or settlements only under very specific circumstances. The court will assess if the need for the information outweighs the damage that may be done to the ADR program through the disclosure. For example, if an ADR disclosure would help establish a violation of law, a court order may be granted.

The high success rate, quick turnaround, and cost-effectiveness of mediation and other ADR programs make the process highly attractive for agencies. The U.S. Postal Service, for example, is considered a model for ADR effectiveness. The agency resolved more than 73 percent of nearly 17,000 complaints filed against it in 2006 through ADR, according to EEOC.

However, this does not mean that ADR is the right venue for all forms of resolution.

Managers should be wary of pursuing ADR in matters that would likely result in the need for agencywide policy change. These matters would affect individuals or organizations outside of the mediation sessions and should be left to more formal proceedings so a full public record would be available for reference. For example, if the resolution of an employee’s complaint could have an agencywide effect on the way leave requests are handled for all employees, it may be best to leave the decision to a formally documented proceeding.

Managers who resist participating in ADR generally are those who fear losing their management control since the sessions place them on equal ground with the employee.

In actuality, you do not surrender your management rights in ADR. The process simply provides a forum for problem solving that may lead to a more positive working environment for both you and your employee. Concerns may be eased by the presence of an experienced attorney. You are free to bring an attorney into the session to act as a representative on your behalf, help you through the process, address your questions, and ensure all settlement terms are in your best legal interest.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.