ADR Report: Part II - Best Practices in Alternative Dispute Resolution FY 2003-FY 2004

The U.S. Equal Employment Opportunity Commission

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1. Executive Summary
2. Introduction
3. Background
4. The ADR Review
   1. Obstacles to ADR Usage
   2. Best Practices in ADR
      1. Support from Senior Management Officials
      2. Training and Marketing
      3. Qualified Neutrals
      4. Evaluation
   3. Other Innovative Ideas in ADR Practices

Appendix

1. Partner Agencies ADR Programs
2. EEOC's ADR Survey
3. Form 462 Data and Survey Response Information

I. EXECUTIVE SUMMARY

As a goal of implementing its Five-Point Plan, the Equal Employment Opportunity Commission has determined that by FY 2009, 50% of all EEO counselings during the pre-complaint stage should participate in the ADR process. In FY 2002, the government-wide data showed that 23% of all EEO counselings participated in the ADR process which is a significant decline from the participation rate of 40% in FY 2001. Consequently, the Commission initiated an ADR review to identify the obstacles that agencies are encountering and to garner agencies’ best practices for improving ADR.

As part of the ADR review, the Commission partnered with twenty-one federal agencies to identify best practices and offer technical assistance to improve the quality and effectiveness of an agency’s ADR program. Through the use of a survey, interviews, and data analysis, the Commission identified obstacles to ADR programs and developed a list of best practices and innovative ideas in ADR.

The best practices in ADR include support from senior management officials, training and marketing of the ADR program, selection of qualified neutrals, and evaluation of the ADR program. In particular, senior management officials can support the ADR program by issuing an ADR policy, providing adequate funding to the ADR program, selecting a full-time ADR program manager, establishing a policy to offer ADR, and using incentives for managers to participate in ADR.

Among the innovative ideas in ADR practices, one partner agency suggested the use of a “one-stop shop” which can resolve all workplace disputes prior to engaging in a more formal administrative process. Several partner agencies recommended the use of a pre-ADR meeting to explain the ADR process, clarify the issues in dispute, and determine the scope of settlement authority. Other agencies encouraged the use of settlement officials, who have greater settlement authority and objectivity than the responsible management official (RMO).¹ In order to utilize ADR more efficiently and frequently during the formal complaint stage, the Commission recommends that agencies allow complainants to review the investigative file and consider an offer for ADR prior to issuing the notice advising complainant of the right to request a hearing and decision from an administrative judge or an immediate final agency decision (FAD), as generally, this is the first time that both parties have an impartial summation of all facts relevant to the case at their disposal.²

II. INTRODUCTION

In an effort to expand the use of ADR in the federal sector, the Commission initiated a project to partner with other federal agencies to identify best practices and offer technical assistance to improve the quality and effectiveness of an agency’s ADR program. ³

III. BACKGROUND

The Commission was established by Title VII of the Civil Rights Act of 1964 with a mission of eradicating discrimination in the workplace. In the federal sector, EEOC’s regulations found at 29 C.F.R. Section 1614.603 require agencies to make reasonable efforts to voluntarily settle EEO discrimination complaints as early as possible in, and throughout, the administrative process. The Administrative Dispute Resolution Act of 1996 (ADRA) requires each federal agency to adopt and promote the use of ADR. Since January 2000, EEOC’s regulations have required all federal agencies to establish or make available an ADR program during both the pre-complaint and formal complaint stages of the EEO process. The requirements for ADR programs in the federal sector EEO complaint process are outlined in 29 C.F.R. § 1614.102(b)(2)(1999), Chapter 3 of EEO Management Directive-110 (MD-110), and EEO Management Directive 715 (MD-715).

In order to effectuate its Five-Point Plan, the Commission has determined that by FY 2009, 50% of all EEO disputes during the pre-complaint stage should participate in the ADR process. In FY 2002, the government-wide data showed that 23% of all EEO counselings participated in the ADR process, which is a significant decline from the participation rate of 40% in FY 2001. Consequently, the Commission initiated an ADR review to identify the obstacles that agencies are encountering in the ADR programs and to garner agency best practices for improving ADR usage in the EEO process. Part II of the ADR Report discusses the ADR review, the partner agencies’ ADR programs, and the best practices for overcoming obstacles to the ADR process.

IV. THE ADR REVIEW

Selection of Partner Agencies

In FY 2003, Office of Federal Operations (OFO) examined the ADR data collected in the EEOC’s Annual Report on the Federal Workforce (FY 2002), i.e., offer rate, participation rate, and resolution rate during the pre-complaint stage of the EEO process.⁴ These rates were considered but not deemed critical to the selection process because past performance was considered secondary to partnering efforts. Additionally, because information on both obstacles and best practices was being sought, it was determined that greater agency participation could be obtained when partnering goals, i.e., relationship building and networking, were highlighted. Using staff expertise, partners were selected with the goal of obtaining a balance of cabinet level, mid-size, and small agencies in the review. OFO selected ten mid-size to large agencies (15,000 or more employees) and eleven small agencies (6,000 or fewer employees) to provide this balance. ⁵

The Commission recognized that agencies, in order to fulfill their EEO missions and goals within their budget framework, may utilize different ADR techniques and procedures to resolve disputes. As such, OFO initially sent Request for Information (RFI) letters requesting the policies and procedures of the partner agencies. Agencies were requested to provide: forms, brochures, and other documents concerning their ADR program and any other information that the agency believed would be relevant to the review. See Appendix 1. Agencies were advised that OFO would schedule interviews with agency staff to obtain additional information about their ADR program.

Survey

The survey, entitled “On-site Survey for Federal Sector ADR Programs” was designed to collect data and anecdotal information concerning the partner agencies’ ADR programs. The survey consisted of nine subject matter areas. See Appendix 2. The survey allowed the gathering of comparable data from each of the agencies regardless of the varying size of each agency. The information and interviews provide insight into the programs chosen by agencies to comply with EEOC’s revised regulations that require agencies to establish or make available an ADR program.

Numerous questions gave the agency the opportunity to comment on their response. Specific questions were included to determine whether the agency overcame any obstacles concerning its ADR program and how it did so. Agencies were specifically asked to identify “best practices.” Other survey topics concerned program operations, budget, marketing and raising awareness of ADR, policies and procedures, processing a complaint through the ADR program, use of neutrals, support of opinion leaders, and ADR program outcomes. The results of selected survey questions are located at Appendix 3.

Face-to-Face Interviews

OFO determined that project goals would be benefited by interviews with agency personnel to clarify, if need be, survey questions, to collect and expand survey responses, and to gather anecdotal information of agency “best practices.” The participants in the face-to-face interviews were chosen by each agency. Some agencies provided one participant and many agencies provided two or more participants. Agency participants included EEO Directors, a diversity program manager, ADR managers, a workplace diversity director, an EEO attorney, an assistant administrator, an associate commissioner, a deputy assistant secretary, an assistant secretary, and staff support persons. Interviews ranged from one to three hours depending upon the number of participants and the subjects discussed. All participants were extremely knowledgeable of their agency’s program and cooperated fully and completely in the interviews.

Section A - Obstacles to ADR Usage

During the ADR review, the Commission requested that partner agencies identify obstacles to effective ADR usage. Based on the obstacles that the agencies reported, the Commission identified that depending upon the issue involved different agency stakeholders may impact the success of ADR programs. Thus, on any particular issue either senior management officials, managers, employees, or union officials may not fully embrace an ADR initiative. It is important to note that while each of these groups may actively support ADR programs on the whole, they may oppose a particular aspect of an ADR program. Overall, the active participation of each group is important to ensure the success of ADR programs.

1. Senior Management Officials

Senior management officials control many factors that directly impact the success of an ADR program. These officials decide where the ADR program will be located in the organization, how much staff and funding the ADR program will receive, and the degree of verbal and written support provided for ADR. The partner agencies reported that ADR programs that are “buried” in an agency’s organizational chart may not receive the necessary respect which is vital to maintain the appearance of independence and neutrality. The partner agencies also explained that when senior management officials do not provide an adequate staff or sufficient funding, the ADR program may be limited in its ability to educate the work force about ADR, to hire qualified neutrals, and to market the ADR program. In addition, the partner agencies reported that the lack of encouragement and support of ADR can filter down from agency head and the senior management officials. As a result, managers may receive mixed messages about the importance of ADR in resolving workplace disputes. For example, in agencies which permit the responsible management official (RMO) to decide whether ADR will be offered, the ADR program may be underutilized without strong encouragement from senior management officials as the RMO may otherwise view ADR as unimportant.

2. Managers

The managers who are named in the EEO dispute also play a crucial role in the viability of an ADR program because the primary object of ADR is to resolve the underlying issues in dispute between the aggrieved individual and the manager. Consequently, if the manager refuses to participate in ADR, the agency may be able to settle the EEO dispute but the underlying issues may not be resolved. The partner agencies reported that managers can act as an obstacle to ADR usage due to the misconception that participation in ADR conveys the message that their management style or decision was improper, or that a settlement in one case will result in more employees seeking EEO relief. Such managers either want to avoid being labeled as “soft,” or believe that ADR is merely a “give away” program which impairs their ability to manage. When agencies do not develop a strategy for encouraging managers to “buy-in” to the concept of ADR, ultimately the managers’ refusal or reluctance to participate in ADR may cause the employees to believe that managers do not want to hear their concerns.

3. Employees

Since employees initiate the EEO process as the result of a workplace dispute, their support of the ADR program is vital to its success. The partner agencies reported that employees can present an obstacle to ADR usage when they distrust the ADR process or management’s motivations for participating in ADR. Some employees may be fearful of ADR because they do not understand the confidentiality provisions, or they believe that neutrals who are paid by the agency cannot be objective. Employees who fear that managers will not negotiate fairly during an ADR session or who fear retaliation after an ADR session may also be reluctant to participate in ADR. Employees may decline to use ADR as a result of their representative’s desire to litigate. Essentially, employees who do not understand the benefits of ADR will be less likely to use it.

4. Union Officials

The union plays a unique role in the EEO process because its officials often take on a dual role of representing the interests of the aggrieved individual and the concerns of the bargaining unit employees. While some partner agencies do not have unions, other agencies indicated that the union can have a profound effect on the ADR program. With union support, ADR programs can flourish; however, opposition from the union can be detrimental to the ADR program. Some partner agencies have reported that union officials may not support the ADR process because they were excluded from negotiating the establishment of the ADR program or they do not want settlement agreements that negatively impact other members of the bargaining unit.

Section B    Best Practices in ADR

The Commission conducted this ADR review to identify best practices and other innovative ideas to help agencies improve their ADR programs. For the purposes of this review, “best practice” is defined as an ADR program technique, policy, practice, or method that was identified as leading to an improved ADR program. The Commission relied upon the experiences of the agencies, the survey data, and Form 462 data to identify best practices in ADR.

1. Support From Senior Management Officials

Partner agencies were asked questions about the degree to which senior management officials support the ADR program. The vast majority of the agencies (76%) reported that senior management officials strongly supported their ADR programs. In particular, 90% of the agencies with the highest ADR offer rate indicated that senior management strongly supported their ADR programs. The partner agencies were then asked to explain how their senior management officials support the ADR program. Based on the agencies’ responses in the survey and the Form 462 data, there are five best practices for senior management officials: (a) issue an ADR policy; (b) provide adequate funding for the ADR program; (c) select a full-time ADR program manager; (d) establish a procedure to offer ADR; and (e) use incentives for managers to participate in ADR.

a. Issue an ADR Policy

Typically, an ADR policy is issued by the head of the agency as a regulation or a memorandum to show support for the ADR program. Some agencies also use brochures and other written documents to convey the agency head’s support for ADR. As one partner agency advised, a successful ADR program starts at the “top” with a high ranking agency official who “sets the tone.”

In an ADR policy, the agency head introduces the ADR program and encourages all employees to participate in the ADR process. For example, the Secretary of the Air Force establishes that “[i]t is Air Force policy to voluntarily use ADR to the maximum extent practicable and appropriate to resolve workplace disputes at the earliest stage feasible, by the fastest and least expensive method possible, and at the lowest possible organizational level.” See Air Force Policy Directive 51-12 (January 9, 2003), http:/www.e-publishing.af.mil.

When the agency head clearly supports the ADR process, managers understand that they are expected to take the ADR process seriously and employees are more likely to believe that the agency wants to hear their concerns. Other partner agencies indicated that “top down” support can be shown by allowing the ADR program manager to report directly to the agency head, or ensuring that the ADR program manager has direct access to the agency head, or inviting the ADR program to participate in developing agency initiatives.

Of the agencies surveyed, 86% reported that they have an ADR policy. Moreover, an ADR policy was established in 90% of the partner agencies with the highest ADR offer rate, and 100% of the partner agencies with the highest participation rate. This correlation suggests that the issuance of an ADR policy promotes higher participation rates.

b. Provide Adequate Funding for the ADR Program

With tight budgets throughout the federal government, senior management officials often face many difficult choices in funding their programs. In order for an ADR program to be successful, it requires sufficient funding to meet the essential functions of the program: training, marketing, qualified neutrals, and an evaluation process. Without these essential functions, an ADR program will not operate effectively.

Of the agencies which participated in EEOC’s ADR review, only 38% had a formal budget for the ADR program. The rest of the agencies received funding, as needed, from the budget of a larger component of the agency (e.g., EEO office or Office of General Counsel). Agencies were not asked to provide a line item budget but the funding inquiries were directed to payment for external neutrals, training for ADR staff, training for employees, and supplies but not items such as salaries and benefits paid to ADR staff. In spending $9,892,483 on their ADR programs in FY 2003, the partner agencies’ average amount of funding spent per their total work force was $5.58 per employee. In particular, Table One shows that five out of the six partner agencies (83%) with the highest ADR participation rate during the pre-complaint stage in FY 2003 ranked among the top six partner agencies with the most money spent on ADR per total workforce in FY 2003. These agencies were USAF, USPS, SBA, Labor, and CSOSA.

Similarly, six out of the ten partner agencies (60%) with the highest ADR offer rate during the pre-complaint stage in FY 2003 ranked among the top ten partner agencies with the most money spent on ADR per total workforce in FY 2003. These agencies were DOL, GPO, NRC, USPS, CSOSA, and USAF. This data shows that even though the partner agencies varied in size, the ratio of ADR funding to the size of the workforce was greater in those agencies that excelled in ADR offer and participation rates.

Table 1 - Top Ten Partner Agencies with Highest Average ADR Spending Per Capita
Pre-Complaint Stage in FY 2003

While having sufficient ADR funding is important, it is only one of many indicators which are necessary for the success of an ADR program. And while having adequate ADR funding does not guarantee that the ADR program will be successful, it ensures that the resources are available to develop and implement the vital functions of an ADR program. Therefore, the availability of sufficient funding has been identified as a best practice in ADR.

c. Select a Full-time ADR Program Manager

When Congress enacted the Administrative Dispute Resolution Act, 5 U.S.C. § 571, in 1996, it required agencies to designate a senior official to be the dispute resolution specialist who is responsible for creating a policy on ADR.⁶ Once agencies have established an ADR program, they must determine who will oversee the ADR process. The dispute resolution specialist may or may not be the same person who manages the ADR program. Typically, agencies will select either a full-time ADR program manager, or they will require an employee to manage the ADR program as a collateral duty.

Of the agencies that participated in our partnership, 12 of the agencies (57%) indicated that they have a full-time ADR program manager, while the remaining nine agencies required their EEO Director or EEO Specialist to manage the ADR program as a collateral duty. Depending on the amount of time that the ADR program manager has to implement the program, there may be a direct impact on the timeliness of the ADR process, the training and marketing of the ADR program, and the evaluation of the ADR process.

Of the 12 partner agencies that have a full-time manager, five agencies (71%) were among the top seven agencies with the highest ADR participation rate during the pre-complaint stage in FY 2003. These agencies were USPS, USAF, DOL, CSOSA, and DOA and are listed in Table Two. Even though some smaller agencies, such as the SEC and SBA have had some success with only collateral staff allocations, the results show that overall, agencies, especially larger ones, do better with full time ADR managers. As such, the use of a full-time ADR program manager has been identified as a best practice in ADR.

Table 2 - Top Seven Partner Agencies with Full-time ADR Program Manager Pre-Complaint Stage in FY 2003

d. Establish a Policy to Offer ADR

The success of an ADR program may depend on the decision-making process that the agency uses to offer ADR. The Commission’s regulations provide agencies with tremendous flexibility in utilizing ADR during the EEO process. The regulation, 29 C.F.R. § 1614.603, encourages agencies to use ADR early in, and throughout, the EEO process; however, agencies have the discretion to decide when to offer ADR.

As part of this decision-making process, agencies have developed different methods for determining when ADR is appropriate including: (1) establishing a policy to offer ADR in every EEO dispute; (2) developing a list describing the situations where ADR is inappropriate; (3) permitting a designated ADR official to offer ADR on a case-by-case basis; (4) allowing the RMO input in deciding to offer ADR; or (5) a combination of the above.

Of the agencies that participated in the survey, seven (33%) reported that they have a policy to offer ADR in all EEO disputes. Nine agencies (43%) reported that they have a list describing situations where ADR is inappropriate, yet only one agency relied solely upon its list.⁷ Eighteen agencies (86%) reported that they have a designated ADR official who offers ADR in the EEO process, but only five rely solely upon that decision-making process.⁸ Three agencies (14%) allow the RMO to have a role in the decision-making process. Seven of the partner agencies (33%) combine a specific list with a designated ADR official to determine when ADR is inappropriate, but only five of those agencies rely solely upon these two decision-making processes.

As each agency’s work environment is unique, the success of a particular type of decision-making process may vary in each agency. Table Three shows that when using the ADR offer rate as the barometer of success, the most effective decision-making process was the policy of offering ADR in all EEO disputes. Of the seven agencies that have a policy of offering ADR to all EEO disputes, the average ADR offer rate during the pre-complaint stage in FY 2003 was 97%.⁹ In contrast, the average ADR offer rate for the 14 other agencies was 38%, including three agencies with an offer rate that exceeded 60%.

The second most successful decision-making process was the combination of a specific list of when ADR would be inappropriate and a designated ADR official. Of the five agencies that used both a designated ADR official and a specific list, the average ADR offer rate was 60%, and all of those agencies had an offer rate of 50% or more. The five agencies that used only a designated ADR official had the third highest average ADR offer rate (35%), and two of those agencies had an offer rate of 50% or more. The three agencies that allowed RMO input into the decision-making process had an average ADR offer rate of only 19%, and none of the agencies had an offer rate of more than 50%.

Table 3 - Impact of ADR Decision-making Process on ADR Offer Rates Pre-Complaint ADR Stage in FY 2003

The policy of offering ADR in all EEO disputes allows agencies to provide the greatest number of employees with the opportunity to participate in ADR, and as such, this policy constitutes a best practice in ADR.

e. Use Incentives for Managers to Participate in ADR

In FY 2000, the EEOC’s MD-110 established that managers have a duty to cooperate in the ADR process once the agency offers ADR and the employee elects ADR. This guidance allows agencies to decide what constitutes “cooperating” in the ADR process. As part of the ADR review, the Commission surveyed agencies about the role of managers in the ADR process. Many agencies require managers to participate in ADR while others allow managers to opt out of the ADR proceeding.

Among the agencies surveyed in the ADR review, 16 out of the 21 partner agencies reported that managers are required to cooperate in the ADR process, and all of those agencies require managers to attend the ADR proceeding. The manager’s cooperation with a request for ADR is often revealed in Form 462 data that tracks the agencies’ decision to rescind their ADR offer after an employee has made an election. In fact, the government-wide data in Table Four shows that agencies rescinded their ADR offers in 952 out of 13,761 ADR elections (6.9%) in FY 2002, and in 1,748 out of 20,815 ADR elections (8.4%) in FY 2003.¹⁰ As such, in FY 2003, agencies rescinded ADR offers in 1 out of every 12 ADR elections and that ratio appears to be increasing. With regard to the partner agencies, the data shows that the agencies rescinded ADR offers in 587 out of 11,553 ADR elections (5.1%) in FY 2002, and in 1,187 out of 17,957 ADR elections (6.6%) in FY 2003. The partner agencies had a smaller ratio (1 out of 15) of rescinding offers than agencies government-wide.

Table 4 - Government-wide and Partner Agencies’ Decisions to Rescind ADR Offers FYs 2002 - 2003

Some agencies allow managers to opt out after they have offered ADR to the complainant which then necessitates a rescission of the agency offer to participate in ADR. Of the five agencies that do not require managers to participate in ADR, three (DNGB, NGA, SSA) offered ADR during the pre-complaint stage in FY 2003 but subsequently rescinded the offers in 32% of all ADR elections. See Table Three above. The 16 agencies that require managers to participate in ADR rescinded offers in only 6% of the ADR elections and ten reported that they rescinded ADR offers in fewer than 10% of the ADR elections. Hence, the agencies with a policy requiring managers to participate in ADR rescinded ADR offers much less frequently than those without such a policy.

With the goal of establishing a model EEO program, the EEOC issued MD-715 in FY 2004. MD-715 encourages agencies to ensure that managers will participate in the ADR process whenever ADR is offered and elected in a particular workplace matter. This provision recognizes that agencies have the discretion to select the agency representative who will participate in the ADR proceeding. If the representative refuses to participate in the ADR process, agencies have the flexibility to assign another representative to participate in the ADR process.

The issuance of MD-715 is one step toward ensuring that managers participate in the ADR process; however, it is also essential for managers to “buy into” the ADR process, which is the difference between reluctant or hostile managers and those supportive of the ADR process. Depending upon the work environment, some agencies’ managers may be more receptive to incentives than only a requirement to participate in the ADR process.

In this regard, agencies may benefit from utilizing incentives to encourage their managers to participate in ADR. Many of the partner agencies have developed best practices to encourage their managers to participate in the ADR process. Some agencies attempted to encourage managers through the use of their chain of command, competition with their peers, and their performance appraisals/awards.

i. Chain of Command

In order to convince managers that ADR is an effective management tool for promoting a productive workplace, some agencies (SEC, USPS, DISA, VA, DOA, USAF) have utilized the managers’ chain of command. Other agencies (ED, NGA, SBA, SEC) have policies that allow the agency to go to the next higher level of management when a manager refuses to participate. In addition, DOA has established a work environment in which everything starts at the top with the commander. Beginning with the commander and continuing down to the managers, DOA holds each management official accountable for the work climate on the base. The idea is that if the work environment is pleasant for the employees, there will be fewer workplace disputes and the office will be more productive. In effect, ADR is viewed as a management tool, which assists managers in assessing and improving the work environment. DOA has identified this policy as “Consideration of Others,” or “CO2."

ii. Performance Appraisals/Awards

The use of performance appraisals and awards is another means of encouraging managers to participate in the ADR process. Several agencies (DOA, ED, DOJ, USPS) stated that ADR participation is considered in Performance Appraisals. Both DOA and USPS link ADR participation to bonuses and awards. At USPS, managers receive training on benefits of ADR and they are rated on ADR participation and the reduction of complaints. At DOA, the agency reviews managers’ EEO record, and every manager must get an “exceptional” on EEO in order to get an “exceptional” overall. When promotions and awards are considered, they evaluate the manager’s EEO participation record. As a result, ADR participation is an economic incentive for career development at DOA.

iii. Competition with Peers

Another means of convincing managers to participate in the ADR process involves creating a competition between the managers for the highest ADR participation rate. The U.S. Postal Service issues a table on a monthly basis, which compares the ADR numbers of regional managers. Since none of the managers want to be last on the list, they are motivated to improve ADR participation in their region.

2. Training & Marketing of ADR Program

Obtaining buy-in among managers and employees is crucial to the success of ADR programs. Without buy-in from the employees, there cannot be an ADR session. The participation of managers in the ADR process is also essential since they are often the primary witness for the agency and their presence in the ADR session is necessary to resolve the underlying issues of the dispute. For example, a manager’s presence is helpful to clarify misunderstandings and convey that an employee is a respected and valued member of the team. When the managers approach ADR with disdain or hostility, employees may perceive that managers do not care about their concerns and may reject ADR in the future. As such, it is vital that employees and managers understand the nature of the ADR process and appreciate the many benefits that ADR has to offer. The training and marketing strategy is an effective approach to obtain buy-in to the ADR program.

a. Training

In addition to providing incentives for managers to participate in ADR, agencies should ensure that all managers and employees receive training on the ADR process. Since FY 2000, the EEOC’s MD-110 has required agencies to educate managers and employees on the ADR process. Section VI (B) of MD-110 provides that all managers and supervisors should receive ADR training on the ADR Act, EEOC’s regulations, the operation of the agency’s ADR program, preparation of settlement agreements, and the benefits of the ADR process. With regard to employees, section VII(C) of MD-110 establishes that agencies should provide appropriate training and education on ADR.

Despite the requirement to train managers and employees about the ADR process, less than half of the managers and less than one-third of the employees have received such training throughout the federal government. By the end of FY 2002, the government-wide data shows that 33% of managers and 30% of employees received ADR training. The agencies improved marginally in FY 2003, when 41% of managers and 31% of employees received ADR training.

Among the agencies surveyed in the ADR review, 32% of managers and 35% of employees received ADR training by FY 2002. In FY 2003, the partner agencies reported that the percentage of managers trained in ADR increased substantially to 45%; however, the percentage of employees receiving ADR training declined slightly to 34%. The survey results show that 81% of the partner agencies provide ADR training to new managers and 52% of the agencies provide ADR training to new employees. The duration of the ADR training ranged from ten minutes to 21 hours, with the average training lasting one to two hours. Only 43% of managers and 24% of employees received follow-up training on the ADR process. The agencies that had a double digit increase in the ADR election rate from FY 2002 to FY 2003, as reflected in Table Five below, generally had a high percentage of managers trained in ADR and most had a high percentage of employees trained in ADR.¹¹

Table 5 - Impact of ADR Training on ADR Election Rates Pre-Complaint ADR Stage in FY 2003

While the percentage of managers and employees who have been trained in ADR is improving, some agencies have developed innovative methods of ADR training. The typical ADR training includes a description of the agency’s ADR process and the benefits of ADR; however, some agencies have also integrated the concept of ADR into leadership training.

Two agencies (DOA, ED) reported that ADR is a training component for SES preparation and DOA also uses an intern program to develop future leaders knowledgeable in ADR programs. An official with DOA advised that agencies need to view training as an “investment” and not a “cost.” Other partner agencies have utilized technology to enhance ADR training by improving understanding and reducing the cost of the training. At least three agencies (USPS, USAF, VA) have developed excellent videos to present ADR information. As such, the use of ADR training is a best practice in ADR.

b. Marketing

Similar to training managers and employees about ADR, agencies can utilize marketing as a means of promoting their ADR program. While training often provides a more in-depth understanding of ADR, marketing techniques use name recognition, celebrations, and other means to keep ADR on the minds of the employees.

Agencies use different techniques to market their ADR program. Some agencies (USAF, DOA, ED, FTC, NGB, DOS, VA) market ADR through kick-off celebrations, office briefings, brown bag lunches, and anniversary celebrations. Agencies (USAF, FCC, ED, NRC, DOS, DOJ, SSA, CSOSA, VA) also use written and electronic documents to market the ADR program, including agency head memoranda, brochures, e-mails, web pages, video tapes, and posters. One agency (USPS) provides promotional items with the name of the ADR program, including pens, mouse pads, identification card holders, and coffee mugs.

Of the agencies that participated in the ADR review, 15 agencies (71%) reported that they used marketing techniques to sell their ADR program when it was initially implemented, and 11 agencies (52%) have used follow-up marketing techniques. When focusing on the partner agencies that marketed ADR during the initial implementation of an ADR program, seven were ranked among the top ten partner agencies based on their ADR offer rate, election rate, and resolution rate during the pre-complaint stage in FY 2003. With regard to the participation rate during the pre-complaint stage in FY 2003, six out of the top ten partner agencies used initial marketing.

The partner agencies that used follow-up marketing comprised seven out of the top ten ADR offer rates, five out of the top ten election rates, six out of the top ten participation rates, and eight out of the top ten resolution rates during the pre-complaint stage in FY 2003. Hence, marketing is a best practice for ADR programs.

3. Qualified Neutrals

Once employees participate in ADR, the agency must determine whether those employees are satisfied with the ADR process, as satisfied employees are then more likely to continue to use ADR as well as recommend ADR to other employees. The employees’ experience in ADR is heavily impacted by the skills of the neutral.¹² Chapter 3, Section IV (B) of EEOC’s MD-110 also provides a minimal standard for qualified neutrals: (1) at least 20 hours of basic ADR training; (2) at least three co-mediations with a qualified ADR neutral or five independent ADR sessions and positive evaluations from a qualified trainer/evaluator; (3) at least two references from two qualified ADR neutrals or trainer/evaluators; and (4) knowledge of EEO law.¹³

Of the agencies that participated in the ADR review, 17 out of 21 agencies reported that they require neutrals to meet some type of qualifications.¹⁴ Three partner agencies (NRC, SSA, VA) require neutrals to meet five qualifications, including hours of training, number of mediations, knowledge of EEO law, certification, references, and years of experience.¹⁵ The survey indicates that 14 partner agencies (67%) require a certain number of hours of ADR training, while ten or fewer agencies require their neutrals to have knowledge of EEO law (48%), a certain number of mediations (38%), certification (29%), references (24%), or years of experience (14%). Overall, two agencies (NGA, DOS) require four qualifications, and six agencies (DISA, USAF, DOJ, FTC, SEC, SBA) require three qualifications. When comparing the FY 2003 pre-complaint resolution rates of agencies based on the number of qualifications for their neutrals, the agencies requiring more qualifications reported a higher resolution rate than those with fewer qualifications. In fact, the average resolution rate appears to increase as the number of qualifications increase, except when comparing agencies with one or more qualifications to those with no qualifications. Since the data suggests that having more qualified neutrals may improve agencies’ ADR resolution rates, the selection of skilled neutrals constitutes a best practice in ADR.

4. Evaluation

Chapter 3, Section VII(C) of MD-110 provides that an evaluation process is essential to any ADR program and should be in place before an ADR program is implemented. The Commission explains that evaluations will assist agencies 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. Evaluations can range from analyzing the ADR data on an annual basis to interviewing the ADR participants about their experience in the process. Often agencies will use exit surveys to capture feedback from the participants following an ADR session.

Of the agencies that participated in the ADR review, 16 agencies (76%) reported that they evaluate their ADR program. In terms of how frequently agencies evaluated their ADR program, they were divided into five groups: (1) after each ADR session – three agencies; (2) monthly – one agency; (3) quarterly – three agencies; (4) annually – three agencies; and (5) multiple evaluations – three agencies. In particular, 12 agencies (57%) reported that they use an exit survey to gather feedback from the ADR participants. ¹⁶

Several agencies have excelled in evaluating their respective ADR programs. The U.S. Postal Service has conducted numerous studies of its ADR program, particularly concerning the feedback from ADR participants. The Department of the Air Force and the Department of Veterans Affairs have conducted numerous studies on their ADR programs, particularly concerning the cost - benefit analysis of ADR. The Department of Veteran Affairs has also established a goal of “creating an employer of choice environment.” In doing so, the VA believes in prevention and early intervention of disputes using ADR, root cause analysis, and environmental assessments. Use of exit interviews should be a best practice as should regular program evaluations.

Section C   Other Innovative Ideas in ADR Practices

This section of the report will discuss the innovative ideas that some partner agencies suggested to improve ADR programs. Innovative ideas from partner agencies include: (1) One-Stop Shop; (2) Pre-ADR Meeting; (3) Settlement Officials; and (4) ADR During the Formal Complaint Stage.

1. One-Stop Shop

A One-Stop Shop is the terminology used to describe an office that attempts to informally resolve a variety of workplace disputes. It generally offers an alternative to the procedures that employees traditionally use to resolve disputes, such as the EEO complaint process, and the negotiated and administrative grievance procedures. A primary advantage of the One-Stop Shop is that the agency can resolve disputes that do not belong in the EEO process which permits the EEO staff to focus on the matters that truly relate to discrimination. The time frames for filing in certain formal processes, e.g., administrative grievance process, may be delayed based on the applicable regulations or agreement by the union; however, the EEO process cannot be suspended. If an employee chooses to initiate the EEO complaint process, ADR through the One-Stop Shop may be available during EEO counseling and the formal complaint stage. ADR during the hearing process is also possible; however, the request for ADR should be made to the Commission’s administrative judge.

Of the 21 agencies surveyed, only two of them, CSOSA and Department of Education, operated ADR programs independently at the informal stage. The majority of the ADR programs (76%) are housed under the EEO office. The Department of Education operates an informal dispute resolution center which provides employees and applicants with an informal process to resolve disputes, disagreements, or complaints in a wide range of work-related matters. The services include mediation offered in an informal setting to assist employees in resolving issues in an expeditious and impartial manner. The center also uses team building and “coaching” as resolution techniques. The center has an agreement with the union that the center can handle negotiated grievances. The center also has an agreement with management that it can go to the next higher level of management when a manager does not want to participate. The center favors “interest-based” mediation.¹⁷

2. Pre-ADR Meeting

Several agencies schedule meetings prior to the ADR session in order to explain the ADR process, clarify the issues in dispute, and determine the scope of settlement authority. For example, during pre-ADR meetings at the Nuclear Regulatory Commission, the ADR program manager meets with the agency official and the employee separately to discuss the ADR process and brainstorm about the issues in dispute. The parties are encouraged to think “outside of the box,” to discuss creative ways to resolve matters, and develop a clear understanding of what needs to be done to resolve the dispute. Since the ground rules are discussed prior to the ADR session, the parties are able to start discussing the issues as soon as the ADR session begins. And, on occasion, the matter is resolved during the pre-ADR meeting. At the Department of State, the pre-ADR meeting includes the RMO, and staff from human resources and the legal office, where they triage cases going to ADR so that the agency knows its settlement limitations ahead of time. Thereafter, the settlement official has full authority to resolve the dispute at the table.

3. Settlement Officials

An obstacle in an ADR session occurs when one of the parties attends without settlement authority. Chapter 3, Section VI (A) of the Commission’s MD-110 provides that the agency representative who participates in the ADR proceeding must have the authority to approve or enter into a settlement agreement, or have access to the person with settlement authority. When the agency representative is the RMO, that person may not have the authority to provide a particular remedy, and as a result, the dispute is unlikely to be resolved during the ADR session unless the RMO has immediate access to a person with settlement authority. Moreover, when the employee finds out that the agency representative does not have settlement authority, the employee may feel that the agency is not taking the dispute seriously and cannot negotiate in good faith because of this lack of authority.

At least three agencies have designated settlement officials who were not involved in the dispute as the agency representative with settlement authority to attend the ADR sessions. A settlement official often has greater scope of settlement authority than a RMO, and may be more objective than a RMO because he or she was not personally involved in the dispute. The Nuclear Regulatory Commission (NRC) has assigned two managers from Labor Relations or Employee Relations to act as the agency representative with settlement authority in all ADR proceedings. While the RMO can participate in settlement discussions, the settlement official has final authority to resolve the disputes. In addition, the presence of the settlement official ensures that the issues raised in the dispute will not go unnoticed following a settlement.

To “cross agency lines” and bring about change, the Department of Labor (DOL) has designated a senior level official who is not involved in the dispute to act as the settlement official. With the RMO in attendance, DOL believes that the settlement official is better able to address the matter at hand, identify the root cause of the problem, and put things in place to prospectively correct the situation. The Department of State (DOS) also utilizes settlement officials, who are typically the RMO’s first level supervisor, unless there is a conflict of interest.

4. ADR During the Formal Complaint Stage

The review in this report focuses on the pre-complaint stage. One reason for this is the lack of ADR usage in the formal complaint stage. Only 8% of the formal complaints in the FY 2003 complaints workload (complaints filed, pending investigations, and remands) participated in the ADR process. While one of the primary motivations for using ADR during the pre-complaint stage is to avoid the cost of an investigation, agencies can avoid the cost of further litigation by resolving the dispute during the formal complaint stage. Agencies are not prohibited from offering ADR during the formal stage notwithstanding that ADR was attempted during the pre-complaint stage. An ideal time to attempt ADR in the formal stage is after the report of investigation has been completed because both parties have the opportunity to assess the strengths and weaknesses of their case.

Chapter 6, Section XI of MD-110 provides parties with another opportunity to attempt ADR after the filing of a complaint. Prior to issuing the notice under § 1614.108(f) at the conclusion of the investigation advising complainant of the right to request a hearing and decision from an administrative judge or an immediate agency decision, agencies can allow complainants the opportunity to examine the investigative file and notify the agency of any perceived deficiencies in the investigation. At this time, the agency could also offer ADR to the complainant. While reviewing the file, the complainant could decide whether ADR would be appropriate in light of the evidence contained in the record. Should both parties agree to participate in ADR, they could extend the investigative process by 90 days under § 1614.108(e).

APPENDIX

1. Partner Agencies’ ADR Programs
2. EEOC’S ADR Survey
3. Selected Survey Responses of Partner Agencies

APPENDIX 1

The following is a synopsis of each of partner agencies’ ADR programs.

1. Court Services and Offender Supervision Agency (CSOSA)

CSOSA became an independent federal agency on August 4, 2002. The ADR program is administered in the Office of Equal Employment Opportunity, Diversity and Special Programs. CSOSA’s Policy Statement 1005 sets forth the agency’s ADR program. The provisions of the policy apply to staff and applicants for employment with the agency who believe that they have suffered discrimination in the workplace because of race, color, national origin, religion, sex, age, disability, retaliation for participating in the EEO complaint process, or for having opposed a practice that is illegal under the EEO statutes. Employee participation in ADR is strictly voluntary. Supervisors and managers, upon the request of the employee, are required to participate in good faith, in at least one (1) mediation session. Settlement is voluntary for all parties. If a settlement is reached, it will be binding on all parties and the civil or administrative dispute will be withdrawn. Not all complaints are eligible for mediation. Depending on the complaint, the ADR unit will evaluate whether the complaint is appropriate for mediation. The factors considered include the nature of the case, the relationship of the parties, the complexity of the case, and the relief sought by the complainant. Abuse of the mediation process (including but not limited to bad faith negotiations, dishonesty, or not adhering to the provisions on confidentiality) may be a reason to deny an employee use of the ADR program. If a settlement agreement is reached, the agreement will be given to the ADR Administrator for compliance review. The ADR Administrator will confer with the EEO Office regarding settlement of cases involving EEO matters prior to the finalization of agreements to insure that the appropriate language is included in the agreement.

2. Defense Commissary Agency (DCA)

The agency’s General Counsel directive on ADR implements the ADRA and authorizes the use of ADR techniques. It is the agency’s policy to use ADR to the maximum extent practicable and appropriate to resolve issues in controversy at the earliest stage feasible, by the fastest and least costly method possible. ADR may be used to resolve the entire issue in controversy or to resolve any portion of an issue in controversy. The directive establishes when ADR will not be used. The directive also establishes responsibilities of the Deputy Director, ADR Coordinator for Headquarters, and for field operations. The primary technique utilized to attempt resolution of EEO disputes is mediation. Due to the potential sensitivity of disputes, the need to protect continuing relationships, and in the interest of providing neutrality, the agency does not use its own employees to conduct mediations of EEO claims. The shared neutrals program, the Office of Complaint Investigations, and other providers may be used as a source for neutrals. Assessments will be periodically conducted to determine participant satisfaction with the ADR process.

3. Defense Information Systems Agency (DISA)

DISA’s ADR policy was implemented in 1994. The program stresses dispute prevention which recognizes that acting to prevent disputes is a key to building a cooperative and understanding attitude with employees. The policy sets forth that efforts should be made to resolve a dispute through interest-based bargaining. The policy outlines the areas in which ADR is not generally used, and lists the responsibilities of the ADR specialist. Heads of DISA organizational components or their designee shall be the ADR specialist for their components and administer the ADR program within their organizations.

4. Department of the Air Force (USAF)

The Dispute Resolution Program Office in the Office of the General Counsel implements the program and provides ADR policy and funding. The Air Force uses the Air Force Mediation Compendium as the blueprint for conducting mediations of workplace disputes including EEO complaints. It contains standards of conduct, practical guidelines, and tools for mediator and parties to use to conduct a successful mediation. The Air Force also provides sample ADR clauses and agreements as well as other helpful documents by making available to the field its “Tinker ADR Toolkit.” The Air Force uses its web site as its primary means of disseminating information and promoting the use of ADR. Each Air Force installation has an ADR Champion to promote the use of ADR to resolve workplace disputes. Air Force procedures provide for the recruitment, qualifications and appointment of mediators. Procedures also provide for ADR Program Marketing, ADR Program Education and Training, and Mediation Training.

5. Department of the Army (DOA)

The Department of the Army’s ADR program is decentralized. Each independent reporting activity and major army command is responsible for developing a viable ADR program with mediation as the primary technique. Each activity has an ADR program for both the pre-complaint and formal complaint process. The activity’s EEO officer coordinates the development and implementation of the ADR program. DOA requires its ADR programs to be designed to fit each activity’s environment and workforce, and conform to the core principles of voluntariness, neutrality, confidentiality, and enforceability. Regulations provide that the role of the mediator is to facilitate the mediation process rather than to evaluate the positions of the parties. Additionally, any person who serves as an ADR neutral must be familiar with the EEO process, ADRA, federal employment remedies, and the statutes that EEOC enforces.

6. Department of Education (ED)

The agency’s Office of Hearings and Appeals includes the Informal Dispute Resolution Center (IDR Center). The Center is a forum for the resolution of employment disputes before the dispute advances to a formal complaint. The services provided by the IDR Center include EEO counseling and mediation offered in an informal setting to assist employees in resolving issues in an expeditious and impartial manner. The Center uses Mediator/Counselors who are trained in a variety of ADR methods. The Mediator/Counselors do not act as fact-finder, judge or decision-maker for the parties. The Center uses brochures, video tapes and events to publicize its program as well as new employee orientation. The Center does not mediate violence in the workplace matters. The Center offers ADR automatically. The Department’s Equal Employment Opportunity Group administers ADR in the formal complaint phase.

7. Department of Justice - Justice Management Division (DOJ)

The Equal Employment Opportunity Staff of the Justice Management Division administers the Division’s ADR program. The ADR program is available during both the pre-complaint process and the formal complaint process. Participation in ADR is voluntary for the aggrieved individual. If an aggrieved individual elects ADR, management participation is mandatory. The ADR method used is mediation. Mediators may be from within the DOJ, another federal agency, or contractor. The Program sets out the responsibilities and functions of the counselor and ADR manager and defines the mediation process. The Office of Dispute Resolution coordinates the use of ADR for the Department of Justice. The Department also has an Office of the Ombudsperson to provide assistance to employees exploring options with issues in the workplace.

8. Department of Labor (DOL)

The Civil Rights Center, a division of the Office of Assistant Secretary for Administration and Management (OASAM), administers the ADR program to resolve informal EEO complaints. A Settlement Official, designated by the agency head and not the manager directly involved, participates in ADR. The Settlement Official is a senior level official, generally a member of the Senior Executive Service, who has settlement authority for the case. The immediate supervisor can attend the ADR session. The agency believes that the Settlement Official is better able to address the matter at hand, identify the root cause of the problem, and put things in place to prospectively correct the situation. The Settlement Official has the ability to cross agency lines and can bring about change. Counselors explain the ADR process but also engage in basic fact finding and prepare a counselor summary to give to the parties so that all have the same general background knowledge of the facts at issue.

9. Department of State (DOS)

The agency’s Office of Civil Rights (OCR) administers its ADR program. OCR employs mediation as its primary ADR process. While participation in the ADR process is discretionary for the aggrieved person or complainant, it is mandatory for managers. Final authority for granting access to the ADR process rests with the OCR. The agency does not meditate security cases or medical clearance cases. The program’s fact sheet sets forth the roles for the mediator, the aggrieved person, the responding official(s) and the resolving official as well as the processing steps to seek ADR. The program tracks the ADRA guidelines for determining if ADR may not be appropriate. The program has forms for Informal Resolution, Letter Notices, Representative Designations, an EEO counselor’s ADR checklist, a sample Settlement Agreement, as well as other documents.

10. Department of Veterans Affairs (VA)

The ADR program is administered in the Office of Resolution Management (ORM). VA Directive 5978, Alternative Dispute Resolution (February 23, 2000) established a Department-wide policy supporting the use of mediation for resolving workplace disputes. The program is available to all VA employees who contact or use ORM to address a workplace problem. The EEO counselor fully informs an aggrieved individual about the ORM Mediation Program and the differences between the traditional EEO counseling process and mediation. Managers are required to participate. In the event the aggrieved individual is a member of a bargaining unit, the appropriate union official is notified. Parties are encouraged to use mediators from the parties’ local facility ADR/Mediation Program. Mediators can also be obtained from other area VA facility mediation programs, other federal agencies, and Department-wide pools of mediators. Mediators are required to follow professional guidelines of the practice of mediation. At the conclusion of the mediation, all participants, including mediators, complete short evaluation forms. VA has initiated a Mediation Certification Program and has released a thirty-minute video, “The Mediation Zone,” concerning its mediation process.

11. Export-Import Bank of the United States (EIB)

The ADR program is administered by the Director of the Office of Equal Opportunity and Diversity Programs. The Director determines whether ADR is appropriate. Mediation is primarily used by the program. ADR mediators are neutrals from another Federal agency or hired from a GSA-approved list of professional mediators. The parties enter into an Agreement to Mediate. Any resolution is reduced to a writing and signed by the parties. The parties are also asked to sign a Confidentiality Agreement. If mediation is unsuccessful the parties are provided a Notice of Right to File a Discrimination Complaint. Among the types of complaint issues that are not mediated are class actions, security clearances, precedent setting issues and reduction-in-force issues, as well as, complaints filed by applicants for employment. Managers are required to cooperate in ADR. After mediation, participants are provided an evaluation form to be completed.

12. Federal Communications Commission (FCC)

The responsibility for administering the ADR program is in the Office of Workplace Disputes (OWD), which also administers the agency’s EEO compliance program. The FCC has chosen mediation as the principal ADR technique for early resolution of EEO complaints of discrimination. Mediation may also be made available during the formal phase of complaint processing. The ADR process is available to current FCC employees or applicants for FCC employment. The OWD provides interested parties “Facts about Mediation,” Mediation Request Follow-up Letter, ADR Agreement, Mediation Evaluation form, Notice of Your Rights and Responsibilities in the EEO Process, a sample Settlement Agreement and Release, and Mediation Conference Ground Rules.

13. Federal Trade Commission (FTC)

The agency’s Administrative Manual, EEO Chapter, 3-850, Part VI outlines the Mediation Program’s policies and procedures. The program provides that when a complainant contacts an EEO counselor concerning a discrimination complaint, the EEO counselor will provide information on the Mediation Program and will explain that mediation is an option to resolve concerns. If the complainant requests mediation and all parties agree to mediate, the Director of EEO will assign a mediator. The manager participating in mediation must have authority to make decisions about the issue raised. All parties will have an opportunity to object to the mediator assigned. The role of the mediator will vary depending on the circumstances and the needs and expectations of the parties. Specific responsibilities of the mediator include ensuring that mediation is conducted consistent with EEO law and 29 C.F.R. Part 1614 regulations, including time frames. In keeping with this requirement, any person who serves as a mediator must have significant knowledge of EEO law, including the theories of discrimination, and familiarity with the federal sector EEO complaint process. Agreements reached through an agency’s mediation are subject to the same requirements as any other EEO settlement agreement.

14. Government Printing Office (GPO)

The agency’s Notice (105-139) concerning dispute resolution provides that responsibility for conflict management and dispute resolution activities is established within the Office of the Chief of Staff. The Notice states that the agency adopts core principles established by the Federal Alternative Dispute Resolution Council concerning confidentiality, neutrality, preservation of rights, self-determination, voluntariness, and other standards. Neutrals are advised to follow the professional guidelines applicable to the type of ADR they are practicing. The agency issued a Guide for the EEO mediation process. The Guide provides guidance and practical suggestions to help employees and supervisors successfully conduct mediation. The mediation process is fully accessible to all individuals and individuals are advised to inform EEO staff if any accommodations are necessary for them to effectively participate in the mediation process.

15. National Gallery of Art (NGA)

The agency’s program is administered by its EEO Officer. The program makes available a brochure, “Mediating Your Employment Dispute,” an Election of Mediation form, an Agreement to Mediate form, an optional Resolution Agreement, and User Survey. The agency uses outside mediators with training and skills in communication and problem solving. The agency looks for mediators with special experience in employment disputes. The agency most often uses mediators from the government-wide shared neutrals program.

16. National Guard Bureau (NGB)

The agency’s Equal Opportunity Directorate Alternative Dispute Resolution Program Plan established and implements policy and program procedures for encouraging the expanded use of ADR. The agency is committed to ADR and strongly endorses the use of various mechanisms that would serve to expedite resolution of disputes in the workplace. Resolution attempts may be considered throughout the process up to the point that a decision is made. The program provides a wide range of ADR training to all personnel, and promotes the use of ADR nationwide. For its neutrals, the agency has adopted the Standards of Conduct for Mediators approved by the American Arbitration Association. The agency has prepared a Request for ADR form, a Client Evaluation form, and a Mediator and Facilitator Profile form. Adjutants General of each state are required to implement the agency’s ADR program plan.

17. Nuclear Regulatory Commission (NRC)

The Commission utilizes mediation as the preferred method of ADR. The ADR Program is administered through the Office of Small Business and Civil Rights under the direction of the Civil Rights Program Manager who serves as the ADR Coordinator. ADR is available to all NRC employees, former employees, and applicants who pursue claims of employment discrimination through the informal and/or formal stage of the agency’s discrimination complaint process. The Commission contracts with three outside firms to provide certified mediators to conduct the mediation sessions. An agency official who has settlement authority participates in each mediation session. Prior to the mediation session, the ADR Coordinator conducts individual meetings with the aggrieved party and his/her representative (if applicable), and the management official, to answer questions and discuss the ADR process, the Agreement to Participate in Mediation, the parties’ roles and responsibilities and the issues alleged. At the conclusion of the mediation process, the participants are requested to complete an evaluation form. In some instances, the ADR Coordinator conducts individual meetings with the mediator and the agency official to obtain feedback on ways to improve the process and discuss lessons learned.

18. Securities and Exchange Commission (SEC)

The ADR program is administered in the EEO Office. EEO counselors have offered mediation to all complainants since FY 1997. Once a complainant has expressed a desire to mediate, the EEO Office Director reviews the case to determine its appropriateness for mediation. The EEO Director takes the position that mediation is mandatory for all managers. Counselors distribute a brochure entitled “Mediation in the EEO Process,” which briefly describes how mediation works. Additionally, the EEO Office provides counseling forms when mediation is elected, a copy of Notice of Rights and Responsibilities which contains information concerning mediation, and a copy of an Agreement to Mediate form. In addition to traditional mediation, the agency also employs a technique referred to as facilitated discussions. Facilitated discussions are informal forums intended to creatively resolve EEO-based conflicts at an early state - before the parties perceive a need to enter EEO counseling and before problematic behavior becomes a pattern. Participation is voluntary and facilitated discussions are moderated by an attorney in the EEO Office.

19. Small Business Administration (SBA)

The agency’s mediation policy is set forth in a Policy Notice (3000-2310) issued by its Administrator wherein he states that he fully supports and encourages the use of ADR in the workplace to resolve disputes and promote cohesiveness. The Policy Notice states that mediation is the primary form of ADR utilized by the Office of Equal Employment Opportunity and Civil Rights Compliance in resolving EEO disputes. Managers and employees are encouraged to use ADR to seek common ground and resolve their disputes in a manner that is both constructive and creative. The agency offers ADR in EEO cases where there will be a continuing working relationship between the parties. The agency does not offer ADR in cases involving termination, reduction-in-force, outside applications for employment, security clearances, class complaints, or some cases alleging sexual harassment. It is the agency’s practice to offer mediation at any point during the EEO process even during the formal process after receipt and review of the report of investigation.

20. Social Security Administration (SSA)

The Office of Civil Rights and Equal Opportunity - Center for Complaints Processing directs implementation and evaluation of the agency’s Alternative Dispute Resolution (ADR) Program for both Headquarters and the field. The Center also receives and conducts inquiries and attempts resolution of informal complaints of discrimination and advises complainants of their rights regarding the discrimination complaints process, the ADR process, administers the formal EEO complaint process, and other related processes. The agency entered into a Memorandum of Understanding (MOU) with the American Federation of Government Employees for purposes of taking steps to promote the greater use of mediation and other ADR techniques. The agency and the union agreed to recognize and to be bound by the principles and provisions of the ADRA. The MOU provides for an ADR coordination in Headquarters and in each region. The MOU sets out the ADR process in the pre-complaint phase and formal complaint phase, official time policy, confidentiality, representation, as well as other aspects of the ADR program.

21. United States Postal Service (USPS)

To address informal EEO complaints, the U.S. Postal Service established a mediation program in 1994 called “Resolve Employment Disputes Reach Equitable Solutions Swiftly” (REDRESS). In the REDRESS program, mediation is voluntary for the complainant and mandatory for the supervisor. The supervisor represents the agency at the ADR session. The supervisor must have settlement authority or be in immediate telephone contact during the session with someone else in the organization who is authorized to approve the settlement. The complainant may bring any representative that they choose to attend the ADR session. The REDRESS program uses the transformative model of mediation which strives to change the on-going interaction between the parties in a positive direction and the parties are strongly encouraged to play a more active role than the mediator or the parties' representatives. A mediation session is generally scheduled within two to three weeks of the request for mediation. Mediations are scheduled on the clock at the employee’s work site or at a site nearby. Whether or not the issues discussed rise to the level of illegal discrimination, the transformative mediation process provides the parties with an opportunity to talk openly, voice all of their concerns, and listen to the other party's concerns. The program uses external mediators who assist the parties in developing a meaningful dialogue thereby supporting them as they work through the problem.

APPENDIX 2
ON-SITE SURVEY FOR FEDERAL SECTOR ADR PROGRAMS

APPENDIX 3

Form 462 Data and Survey Response Information

1. Location of ADR Office
2. ADR Program Organizational Reporting Chain
3. Support of Management
4. RMO Input
5. Management Participation
6. Designated ADR Official
7. List of Inappropriate Matters
8. ADR Budget
9. ADR Staff
10. Use of ADR Policy/Procedures
11. Relationship with Union
12. Use of Marketing
13. Use of Training
14. Types of ADR Techniques
15. Sources of Neutrals
16. Qualifications of Neutrals
17. Role of Neutrals
18. Location of ADR Sessions
19. Typical Participants
20. Settlement Authority
21. Amount of Monetary Benefits Awarded
22. Types of Non-Monetary Benefits
23. Evaluation of ADR Program

1. Location of ADR Office

EEOC’s revised regulations at 29 C.F.R. § 1614.102(b)(2) require agencies to establish or make available an alternative dispute resolution program and that such program must be available for both the pre-complaint process and the formal complaint process. EEOC’s MD-110 provides that agencies may be flexible in designing their ADR programs to fit their environment and workforce. See MD-110, Chapter 3, p. 3-1. Neither EEOC regulations or its Management Directive require agencies to place an ADR program in any particular agency office or within any particular agency organizational structure.

Agencies were surveyed as to what organization is responsible for administering their ADR program. Survey choices included Human Relations office, Equal Employment Opportunity (EEO) office, Labor Relations office, Office of General Counsel or Solicitor’s office, union office, or independent of other offices. The vast majority of the partner agencies reported that the ADR program is located in the EEO office. With regard to ADR for pre-complaint and formal phase EEO disputes, 16 of 21 (76%) agencies house their ADR program in the EEO office. Of the five remaining agencies, two ADR programs are located in the human resources offices, two are in independent offices, and one is in the Office of General Counsel.

An example of an ADR program in the pre-complaint phase that is in an independent office is the Department of Education’s Informal Dispute Resolution Center (IDR Center). The center is a unit under the Office of Hearings and Appeals (OHA). The IDR Center provides all Department employees and applicants with an informal process to resolve disputes, disagreements, or complaints on a wide range of work-related matters. IDR Center methods include EEO counseling and mediation in an informal setting to assist employees in resolving issues in an expeditious and impartial manner. The IDR Center is also available to bargaining unit employees to initiate dispute resolution over most performance appraisal issues.

The Department of the Air Force’s ADR program is an example of an organization which places its program within the Office of General Counsel. The General Counsel of the Air Force provides overall policy and guidance for the ADR program including its use in EEO workplace disputes. The Deputy General Counsel for Dispute Resolution is the Department’s dispute resolution specialist. The ADR program is administered by the Dispute Resolution division of the General Counsel’s office. The Department’s regulations require each installation commander to appoint an individual to serve as the installation’s ADR Champion for Workplace Disputes. The ADR Champion and installation EEO Manager must ensure that at a minimum, the installation ADR program has sufficient qualified personnel to manage and administer an ADR program that meets EEOC requirements.

2. ADR Program Organizational Reporting Chain

The majority of the agencies responded that the ADR program manager reports to the EEO director. Of the 16 agencies that responded to this question, eight agencies stated that the ADR program manager reports to the EEO director while three agencies stated that their ADR program manager reports to the agency head and five agencies stated that their ADR program manager reports to an intermediate agency official, e.g., Vice President, Resource Management, Assistant Commissioner, Assistant Secretary, and Commander.

The agencies were asked, “From an organizational standpoint, to whom does the ADR program manager report?” Some agencies expanded on their answer and provided “chain of command” information from the ADR program manager up through their organization to the agency head. One mid-sized agency reported that the ADR manager, who is an EEO Specialist, reports to the EEO Group Director, who reports to the Management Services Director, who reports to an Assistant Secretary, who reported to the Deputy Secretary, who reports to the Secretary. A larger agency reports that the ADR manager reports to an Assistant Secretary, who reports directly to the Secretary. Another mid-sized agency reported that the ADR manager, who is the Complaints Manager, reports directly to the Agency Head.

3. Support of Management

The survey requested, “To what extent does top management in your agency support ADR?” EEOC’s MD-110, Chapter 3 provides that “[a]gency managers must be aware that they have a duty to cooperate in an ADR process once the agency has determined that a matter is appropriate for ADR.” and “[a]n assurance that the agency will make accessible an individual with settlement authority... .”

Anecdotal information from survey participants indicates that many agency heads provide leadership in the development and growth of their ADR program. Agency officials advised that top management follows the lead of the agency head and where there is strong support from the agency head, top management likewise encourages the use of ADR.

One program manager advised that a successful program starts at the top with the Secretary, who “sets the tone.” Another agency reported that the agency head issued a Policy Notice advising that he fully supports and encourages the use of ADR in the workplace, and that managers and employees are encouraged to use ADR to seek common ground and resolve their disputes in a manner that is both constructive and creative.

While military organizations recognized this “chain of command” benefit to a successful program, non-military agencies likewise advocate and recognize the benefit of top-down support. One reporting agency encourages top support by briefing incoming assistant secretaries and senior executive service officials as to its ADR program. A large agency official expressed his view that middle management support is crucial.

4. RMO Input

Survey participants were asked: “Does the RMO play a role in deciding which cases are appropriate of ADR?” Eighteen agencies (86%) responded No.

MD-110, Chapter 3, p. 3-13, provides that an agency’s written procedures detailing the operation of its ADR program should include an assurance that no responsible management official (RMO) directly involved in the case will serve as the person with settlement authority. The management directive does not prohibit the agency from seeking input from the RMO in deciding whether a case is appropriate for ADR.¹⁸

In order for ADR programs to be voluntary, parties should be reassured that no one can force a resolution on them. The agency’s decision to settle or not to settle during or after an ADR session is the voluntary decision of the agency. And like the employee’s voluntary decision to settle, the agency should be reassured that no one can force a resolution on it.

5. Management Participation

MD-110 and MD-715 advise that managers have a duty to “cooperate” and “participate” in the ADR process. The survey asked “After the agency has offered ADR and the complainant has elected to participate in ADR, are managers involved in the complaint required to cooperate in ADR? Sixteen (76%) answered Yes and five (24%) answered No.

Some agency representatives expressed concern that not allowing a manager to decide whether to participate or not in ADR would violate MD-110's ADR core principle of voluntariness. MD-110 provides that parties must knowingly and voluntarily enter into an ADR proceeding. See MD-110, Chapter 3, Section VII(A)(1). In the federal EEO process, the parties are the complainant and the agency. See Bates v. Tennessee Valley Authority, 851 F.2d 1366, 1368 (11th Cir. 1988). If the decision to offer ADR is made by the agency after consultation with a manager who may not want to have the agency offer ADR or does not want to personally participate in ADR, the decision to offer ADR is still that of the agency and is still voluntary. This initial decision is in keeping with the core principle of voluntariness.

In face-to-face interviews, two agencies advised that ADR participation is considered in a manager’s Performance Appraisal. Two agencies linked ADR participation to bonuses and awards for managers. Two agencies have policies that allow the agency to go to the next higher level of management when a manager does not want to participate in ADR.

6. Designated ADR Official

The survey asked, “Is there a designated agency official who decides which cases are appropriate for ADR? Fifteen (71%) replied Yes and six (29%) replied No. The follow-up question asked, “If so, what is the job title of the official who decides which cases are appropriate for ADR.” Responses to this question included: Base Commander or designee; EEO director; Director of the Office of Workplace Diversity; General Counsel; Civil Rights Program Manager; ADR Program Manage; the Chief of Counseling and Complaints Processing Division; Assistant Secretary; National Program Manager and Area ADR Coordinator; EEO Counselor; and the official who decides which cases are appropriate for ADR varies from agency to agency within the Department.

7. List of Inappropriate Matters

As stated in MD-110, Chapter 3, p. 3-4, ADRA and the EEOC ADR Policy Statement recognize that there are instances in which ADR may not be appropriate or feasible. Additionally, agencies have discretion to determine whether a given dispute is appropriate for ADR and may decide on a case-by-case basis whether ADR will be offered. MD-110 provides a caveat to this discretion by advising agencies that they may not decline to offer ADR to particular cases because of the bases involved.¹⁹

The survey asked, “Does the agency have a list of specific types of matters that are inappropriate for ADR?” Nine (43%) answered Yes and 12 (57%) answered No. The follow-up question asked the agencies to identify the types of matters that are inappropriate for ADR. Examples of the types of matters that agencies advised that are not appropriate for ADR include: classification appeals, fraud cases, situations involving crimes, cases involving allegations of theft, cases where an individual is accused of violence, MSPB cases, cases involving employment applications from individuals outside of the agency, security clearance cases, termination cases, sexual harassment cases, reduction-in-force cases, fraud, waste, or abuse cases, and patient abuse cases. One agency advised that each case is looked at on an ad hoc basis.

8. ADR Budget

Survey participants were asked if the agency has a formal budget for the ADR program and, if so, how much money was allocated to the ADR program in FY 2003. Eight (38%) agencies reported that they have a formal budget while 13 (62%) reported that they did not. If an agency did not have a “line” item for ADR, program expenditures were part of the office budget in which the program was housed. One agency official opined that the ADR budget should be on dollar parity with the traditional counseling budget.

9. ADR Staff

Agencies were surveyed as to whether their ADR program manager serves in that role full-time or part-time. Twelve (57%) agencies reported that their ADR manager serves full-time and nine (43%) agencies reported that its ADR manager serves part-time. The six largest agencies in the survey each report having a full-time ADR manager. Ten of the twelve largest agencies report having a full-time ADR manager. The smallest agency with a full-time ADR manager is Court Services and Offender Supervision Agency (CSOSA) which has a workforce of 1,006.

The United States Postal Service’s REDRESS program has a full-time National Program Manager with six people reporting directly to the manager. The program is located in the National EEO Compliance and Appeals Programs which is in the National Office of Labor Relations. Except for the smallest agency in the survey, USPS also had the highest election rate (78%) in FY 2003. USPS had the highest participation rate (76%) of all agencies in FY 2003.

10. Use of ADR Policy/Procedures

The survey asked, “Does the agency have a written ADR policy?” Eighteen (86%) answered Yes and three (14%) answered No. In a follow-up question, agencies were asked, “If there is no written ADR policy, describe any other guidelines which describe the program.” Two agencies without a written ADR policy each stated that they use a brochure to describe the program. All agencies, save one, indicate that the ADR process is available to all employees. The single agency that stated that the ADR process is not available to all employees indicated that its administrative judges are excluded from the ADR program.

11. Relationship with Union

Agencies were asked if there was union involvement in development of the agency’s ADR policy, and at what stage. Thirteen (62%) responded that there was union involvement in the development of the ADR policy and eight (38%) responded No. Six agencies responded that union involvement was sought before the plan was drafted, with one agency adding that union involvement was throughout the development of the ADR program. Five agencies allowed unions to comment on the final ADR plan. Three agencies encouraged union support of ADR. One large agency stated that union involvement in the process and in meetings concerning the ADR program is essential. This agency also advised that union involvement is necessary to resolve disputes, and that when the union participates in mediation, resolution is more likely. Another agency submitted that the unions can be helpful in the “reality testing” portion of mediation. A small agency noted that it needed to obtain union support to improve participation rates.

12. Use of Marketing

Survey participants were asked about marketing efforts for their ADR program. Fifteen (71%) agencies responded that they had special marketing techniques to “sell” their program and six (29%) agencies responded that they did not have marketing efforts when they first put their ADR programs into effect. Eleven (52%) agencies reported that they did participate in follow-up marketing programs. One agency reported using site visits, a new regulation, work shops, and training seminars while another agency used brochures, an annual workforce program, and leadership training to market its ADR program after its initial start-up. One agency reported having an anniversary celebration while another used its webpage, pamphlets, and new orientation to market its ADR program.

13. Use of Training

Agencies were asked a series of questions related to ADR training both for new employees, new managers, and subsequent training for employees and managers. Seventeen (81%) agencies reported providing ADR orientation training to new managers and eleven (52%) provided ADR orientation training to new employees. Nine (43%) agencies provide training to managers after their initial training and four (19%) agencies provide employees training on ADR after their initial training.

Initial training for managers varied in time. One agency reported the training to be ten minutes and another agency 30 minutes. Twelve agencies reported time periods from one to four hours while one agency reported 21.5 hours as the length of its manager training course. For new employees, seven (33%) agencies reported training times from one-half hour to four hours.

14. Types of ADR Techniques

In the federal sector equal employment opportunity (EEO) process, mediation is recognized as the most frequently used ADR technique. Other ADR techniques included: settlement conference; early neutral evaluation; factfinding; facilitation; ombuds; mini-trials; and peer review. Every agency (100%) reported using or having available for use mediation. Facilitation was the next most used ADR technique with eight (38%) agencies reporting its availability followed by factfinding reported by six agencies (29%). Settlement conference and early neutral evaluation were reported as available by four (19%) agencies, followed by three (14%) agencies reporting having ombuds available. Two (10%) agencies reported that peer review is available to resolve EEO disputes.

15. Sources of Neutrals

MD-110, Chapter 3, p. 3-10, provides that an agency may use neutrals for its ADR program from other federal agencies, through a federal neutral sharing program or other arrangement, private organizations, private contractors, bar associations, or individual volunteers. ADRA defines a neutral as “an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.” The Commission’s policy statement provides that ADR proceedings are most successful where a neutral with no vested interest in the outcome of the dispute allows the parties themselves to attempt to resolve their dispute. See MD-110, Chapter 3, p. 3-9. Agencies may use more than one source of neutrals. Agencies are strongly encouraged to use outside neutrals, however, in the event that an agency uses its own employees, it must assure the neutrality and impartiality of the neutral. Fifteen (71%) agencies reported using more than one source of neutrals. Private contractors were reported as a source of neutrals by fifteen agencies. “Employees of the agency” and “employees of another federal agency” were each reported being used as a source in twelve responses. Volunteers and “other” sources were identified by two agencies. One agency identified using a college as one of its sources of neutrals.

16. Qualifications of Neutrals

Number of Hours

MD-110, Chapter 3-11, provides that any person who serves as an ADR neutral must have professional training in whatever dispute resolution technique(s) the agency utilizes and have knowledge of EEO law, but does not require a specific number of training hours. The Commission will accept as sufficient such training as is generally recognized in the dispute resolution profession. The Department of Health and Human Services requires for its Interagency Program on Sharing Neutrals that neutrals have at least 20 hours of basic mediation skills training in addition to other requirements.

The survey asked if agencies required a minimum number of hours of ADR training. Fifteen (71%) agencies reported requiring a minimum number of hours of ADR training. The highest number of hours required was 80 hours by one agency. Four agencies required 40 hours of training, three agencies required 32 hours, and one agency required 20 hours. The remaining six agencies that require a minimum number of hours did not report the exact number of training hours required for a neutral’s qualifications.

Number of mediations

The survey asked if agencies require its neutrals to have conducted a minimum number of mediations in order to qualify as a Lead Neutral. Eight (38%) agencies responded Yes, with the highest number of previously conducted mediations being ten and the lowest being one. One agency reported that it required three mediations, three co-mediations, and three observed mediations in order to qualify as a Lead Neutral.

Years of experience

Agencies were asked if the Lead Neutral was required to have a number of years of experience as a mediator in order to qualify for service as a neutral for the agency. Two (10%) answered Yes without further explanation.

Experience in EEO law

Ten (48%) agencies responded Yes to the question asking if their neutrals are required to be experienced in EEO law.

Certification

Four (19%) agencies responded that certification by a state or other entity is required in order to be a neutral in their ADR program.

References

Four (19%) agencies responded that prospective neutrals must provide references as to their dispute resolution skills.

Overcoming obstacles

Survey participants were asked “Are neutrals trained in methods for overcoming barriers to agreement that may arise in ADR?” Fourteen (67%) responded Yes and seven (33%) responded No.

Workplace culture

Participants were requested to answer Yes or No to the question; “Are Neutrals trained in understanding the Agency workplace culture? Fifteen (71%) agencies answered Yes and six (28%) agencies answered No.

Successful ADR programs strive to have quality neutrals who have received training on ADR techniques and EEO law. Two agencies submit that internal mediators are better able to assist the parties in reaching resolution because they are more familiar with the workplace culture. These agencies also state that internal mediators have a desire to have the process work because they work for the agency. A large agency with a very successful program uses only external neutrals trained in the agency-specific method of mediation. This agency excludes employees and former employees as mediators to maintain the perception of fairness among its workforce. Another agency’s official believes that neutrals should have subject matter training because it benefits “reality checks” during mediation.

17. Role of Neutrals

Agencies were asked: “If mediation is used, do co-mediators assist lead mediators during the ADR session?” Six (27%) agencies answered Yes while eight (36%) agencies answered No. Eight (36%) agencies answered that whether co-mediators are used or not varies.

18. Location of ADR Sessions

Survey participants were given four choices as to where the ADR sessions are conducted. The choices were: 1. In the agency’s EEO office; 2. In the agency’s ADR office; 3. In another location within the agency; and 4. In a location outside of the agency. Nine (43%) agencies reported using more than one location. “Another location within the agency” was the most frequent answer with sixteen affirmations. Eight agencies reported using the agency’s EEO office and three agencies reported using the agency’s ADR office.

19. Typical Participants

MD-110, Chapter 3, p.3-3, provides that aggrieved individuals have the right to representation throughout the complaint process, including during the ADR process. Agency procedures provide that parties have the opportunity to bring a representative to an ADR session if they desire to do so. Survey participants were given nine examples of who typically participates in the ADR session: 1. An employee with a complaint; 2. A union representative acting on behalf of an employee with a complaint; 3. An attorney acting on behalf of an employee with a complaint; 4. Another individual acting on behalf of an employee with a complaint; 5. The responsible management official; 6. A non-attorney representative acting of behalf of the agency; 7. An attorney acting on behalf of the agency; 8. The union acting by itself, and 9. Any other party.

Nineteen agencies reported that the employee with a complaint typically attends and eighteen agencies reported that the responsible management official typically attends the session. Eight agencies noted that the union typically attends acting on behalf of the complainant and two agencies indicated that the union attends acting by itself. Three agencies reported that an attorney acting on behalf of the agency typically participates while eight agencies reported that an attorney acting on behalf of the employee typically participates. Five agencies reported that another individual acting on behalf of the employee typically attends while ten agencies reported that a non-attorney agency representative typically attends. One agency indicated that a subject matter expert typically attends and another agency stated that an agency settlement official typically attends.

20. Settlement Authority

MD-110, Chapter 3, p. 3-13, provides that an agency’s written procedures detailing the operation of its ADR program should include an assurance that no responsible management official (RMO) directly involved in the case will serve as the person with settlement authority. An agency’s written procedures should include an assurance that the agency will make accessible an individual with settlement authority. MD-110, Chapter 3, p. 3-14.

The survey asked four questions concerning settlement authority. First, “Is the agency representative required to have the authority to enter into a settlement agreement?” Second, “If the agency representative does not have authority to enter into a settlement agreement, is he/she required to have immediate access to a person with this authority during the ADR session?” Third, “Does the agency official directly involved in the dispute serve as the person with settlement authority?” Fourth, “If not, who generally serves as the person with settlement authority?”

Fifteen agencies advised “Yes” as to the first question. And fifteen agencies likewise answered the second question “Yes.” Seven agencies advised that the official directly involved in the dispute serves as the person with settlement authority with one agency indicating that the authority is “delegated authority” and three agencies indicated that it varies. Different individuals were indicated in response to the fourth question, e.g. Commander, senior management official, EEO liaison, Manger, Division Director and EEO Director, Department Head, executive director, district director, the next level of management above the RMO, and the supervisor.

21. Amount of Monetary Benefits Awarded

EEOC through its Form 462 collects information for ADR settlements with monetary benefits in both the Informal Phase and the Formal Phase. Agencies report the total amount of ADR Settlements with Monetary Benefits for both the Informal Phase and the Formal Phase. The totals include amounts paid for compensatory damages, backpay/frontpay, lump sum payments, attorneys’ fees and costs, and any other monies.

22. Types of Non-Monetary Benefits

29 CFR 29.1614, subpart E, provides the appropriate remedies available to complainants after a finding of discrimination. These remedies can serve as a framework for parties in crafting their ADR resolution in a mutually satisfactory fashion. EEOC through its Form 462 collects information for ADR settlements with non-monetary benefits in both the Informal Phase and the Formal Phase. Information is collected concerning New Hires, Promotions, Reinstatements, Expungements, Transfers, Removals Rescinded and Voluntary Resignations, Reasonable Accommodations, Training, Apology, and other benefits.

23. Evaluation of ADR Program

a. Exit Surveys

Participants were asked: “Are exit surveys used following the ADR sessions?” Twelve agencies reported that they use exit surveys. The EEOC does not require agencies to conduct exit surveys at the conclusion of an ADR session. However, agencies often use exit surveys to obtain participants’ opinion as to different aspects of the ADR process and assist the agency’s efforts in improving its program. Favorable comments about a program may help develop acceptance by others and support by management.

b. Frequency

The survey asked, “How often do you evaluate the program?” Six agencies reported that they evaluate their program after each mediation session. Three agencies stated that they evaluate their program on an annual basis and five stated that the program is evaluated quarterly. One agency reported evaluating its program twice a year.

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Footnotes

¹ The responsible management official (RMO) is the manager who has been accused of unlawful discrimination. Some agencies also refer to the RMO as the principle agency witness.

² 29 C.F.R. § 1614.108(e) and (f) (1999). The agency’s ability to offer ADR under traditional complaint processing may be limited once the official report of investigation is issued and the complainant elects a FAD or a EEOC hearing.

³ The twenty-one (21) partner agencies were: Court Services and Offender Supervision Agency (CSOSA); Defense Commissary Agency (DCA); Defense Information Systems Agency (DISA); Department of the Air Force (USAF); Department of the Army (DOA); Department of Education (ED); Department of Justice (DOJ); Department of Labor (DOL or Labor); Department of State (DOS or State); Department of Veteran Affairs (VA); Export-Import Bank (EXIM); Federal Communications Commission (FCC); Federal Trade Commission (FTC); Government Printing Office (GPO); National Gallery of Art (NGA); Defense National Guard Bureau (DNGB); Nuclear Regulatory Commission (NRC); Security and Exchange Commission (SEC); Small Business Administration (SBA); Social Security Administration (SSA); and United States Postal Service (USPS).

⁴ Annually, the EEOC requires agencies to submit the Form 462 which includes their data on the EEO complaint process and the ADR process.

⁵ For the purpose of this report, the ADR offer rate is calculated by dividing the number of ADR offers by the number of counselings, and then multiplying by 100. The term “counselings” refers to the number of cases where an individual received EEO counseling. The ADR participation rate is obtained by dividing the number of counselings processed in ADR by the number of counseling, and then multiplying by 100. The ADR resolution rate is determined by dividing the total number of counselings resolved through ADR (settlements and withdrawals) by the number of ADR closures, and then multiplying by 100.

⁶ In FY 2004, the Commission issued Section II (E) of the MD-715 which recommends that agencies “appoint a senior official as the dispute resolution specialist of the agency charged with implementing a program to provide significant opportunities for ADR for the full range of employment-related disputes.”

⁷ A list of matters inappropriate for ADR may include class actions, outside applicant, violent or criminal conduct, fraud, impacts a policy, classification appeals, security clearance, MSPB matter, termination issue, sexual harassment issue, reduction-in-force (RIF) issue, or abuse of process.

⁸ The titles of the designated ADR officials include base commander, EEO officer, EEO director, general counsel, civil rights program manager, ADR program manager, assistant secretary, and EEO counselor.

⁹ When comparing the actual offer rates listed in the 462 reports to the survey responses of the corresponding agencies, we noted that pre-complaint offers were actually only extended in 97% of the complaints. This may have been due in part to decisions made by a given agency to exclude a specific type of case from mediation. These types of cases may have involved issues such as sexual harassment or issues of national security.

¹⁰ Beginning in FY 2002, the EEOC, through its Form 462, began collecting pre-complaint data that tracked agency ADR rejections where the agency offered ADR and the employee elected ADR but the agency subsequently rescinded the offer. The Form 462 does not request that agencies provide the reasons for rejections but typically, this scenario occurs when the RMO refuses to participate in the ADR process.

¹¹ The ADR election rate is determined by dividing the number of counselings processed in ADR by the number of ADR offers that were made, and then multiplying by 100.

¹² A neutral is defined as “an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.” 5 U.S.C. 571(9). The Commission, in its policy statement on ADR, provides that ADR proceedings are most successful where a neutral or impartial third party, with no vested interest in the outcome of a dispute, allows the parties themselves to attempt to resolve their dispute. Chapter 3, Section IV (A) of EEOC’s MD-110.

¹³ In developing these standards, the Commission relied upon the qualifications for mediators in the Department of Health and Human Services’ Interagency Program on Sharing Neutrals.

¹⁴ Several agencies (CSOSA, DOL, USPS) reported that they have qualifications for neutrals; however, they did not identify any specific qualifications.

¹⁵ In addition, many of the agencies ensure that the neutrals receive training on understanding the workplace culture (71%) and overcoming barriers (67%).

¹⁶ The survey did not inquire if agencies assess whether changes were necessary and/or implemented such changes as a result of the evaluations.

¹⁷ “Interest-based problem-solving” is a technique that creates effective solutions while improving the relationship between the parties. The process separates the person from the problem, explores all interests to define issues clearly, brainstorms possibilities and opportunities, and uses some mutually agreed upon standards to reach a solution.

¹⁸ The use of RMO for “responsible management official” is the nomenclature used to identify the manager or agency official who is alleged to have discriminated against the complainant. Some agencies identify the individual named by the complainant as the “responding management official.” The EEOC recognizes that a complaint contains allegations that are subject to proof.

¹⁹ Bases include race, color, religion, national origin, sex, age, disability, or retaliation.

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This page was last modified on October 4, 2004.