Alternative dispute resolution (ADR) can be a great tool for supervisors in a wide variety of employment conflicts — including discrimination cases, personnel actions, adverse actions, whistleblower claims and claims under the Uniformed Services Employment and Re-employment Act (USERRA). When used in appropriate circumstances, ADR can yield results that are faster, less expensive and less contentious than traditional complaint processing, such as through the Equal Employment Opportunity Commission or Merit Systems Protection Board.
ADR is an informal process in which a neutral third party, the mediator, assists the opposing parties in reaching a voluntary, negotiated resolution of a complaint. The opposing parties could be two co-workers engaged in conflict or a manager and subordinate working through issues. No types of complaints are off the table.
Mediation is different from other forms of dispute resolution in that the parties participate voluntarily and the mediator has no authority to make a decision. The decision-making power rests in the hands of the parties.
During the ADR process, both sides have the opportunity to discuss the issues raised in the complaint and clear up misunderstandings that may have occurred. Ultimately, the goal is to compile the areas of agreement into a final, formal resolution of the complaint. This resolution may be an elaborate remedy, such as transferring an employee to another supervisor, or may be as simple as an apology.
There are no filing deadlines, no formal rules of evidence and no witnesses. While it is not necessary to have an attorney or other representative attend the mediation session, each party has the option to have legal counsel present. Having an attorney present ensures that your individual best legal interests are being met through any proposed resolution or settlement. However, the attorney you choose should be well-versed in the mediation process.
Whenever managers see a problem brewing between employees, or when they themselves have an issue developing with a co-worker, mediation should be the first step toward resolution. The earlier the problem is addressed, the more likely it will be resolved.
Within my practice, we frequently look to mediation to resolve contentious cases, especially in matters relating to USERRA, employee removals and employment discrimination.
To have the most productive mediation possible, managers should fully prepare. Think about the issues and your interests and what you would like to see as an outcome. Explore whether your expectations differ from your agency’s. Discuss the settlement options and a negotiation strategy. Review relevant documents and bring them to mediation.
In determining who should attend mediation, consider that an employee may feel outnumbered and at a disadvantage if too many managers are present. Generally, attendees should be people with the most knowledge about the problem and someone who has settlement authority — such as a high-level manager, legal counsel or human resources official.
I have found that ADR can be particularly effective if the parties have a need to continue their working relationship. For example, if the two employees in conflict frequently work on a team project together, finding a resolution outside of litigation will be beneficial to the team environment as a whole.
ADR is also beneficial when it is clear that both parties want to reach a settlement quickly, but personality conflicts or poor communication have hampered negotiations. Also, if the parties prefer to maintain confidentiality about the issues, ADR is the way to go. Generally speaking, communication during dispute resolutions is confidential and may not be disclosed by either party or the mediator.
ADR is independent of any traditional complaint process such as through EEOC or MSPB. If mediation does not result in resolution of a complaint, the complainant can continue his grievance through the appropriate agency, and each party must meet all the filing requirements and time frames outlined.
Also remember that mediation is an option even if you’ve already filed a complaint. An ADR session can be scheduled to attempt to come to a resolution outside of the more formal forums. And if the dispute is not resolved during mediation, the case can continue in the administrative process as though the ADR session did not occur.
— 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 firstname.lastname@example.org.