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Census Alternative Dispute Resolution Program (CADRP)

Overview

Alternative Dispute Resolution (ADR) is an effective tool for employees, managers and supervisors in resolving various employee conflicts and disputes. It is an alternative to traditional methods of early intervention and dispute resolution. ADR provides parties the chance to present complete details of an issue in dispute, and allows the parties the opportunity to hear each other’s view points. An essential element of ADR however is that it provides parties the opportunity to identify common ground and concurrences and prepare mutually acceptable options to resolve disputed issues. These sessions, while voluntary, are highly encouraged due to their success rate, however not all situations are suitable for mediation. The advantage of mediation over more traditional complaint procedures is that it provides an environment for creative problem solving between the parties. The mediation session is private and confidential. The CADRP uses mediators from the Interagency Sharing Neutrals Program for headquarters employees and the Federal Executive Board for employees in the regions. Through the skilled assistance of the mediator, parties are encouraged to listen, be empathetic, mediate in good faith, suspend preconceived judgments, respect each other’s values, negotiate without holding to a fixed position, and focus on resolving the underlying conflict.

Frequently Asked Questions

A CADRP Mediator answers your questions:

Does mediation work?

Approximately 80% of mediated cases are resolved. Participants express a high degree of satisfaction with the fair and efficient process that avoids the stress of a lengthy investigation and possible litigation.

What is a CADRP Mediation?

A CADRP mediation involves a workplace or employment-related dispute, such as an EEO complaint or grievance. The trained mediator comes from a different federal agency to assure impartiality and may be assisted by a co-mediator.

What is the Role of a Mediator?

The mediators will facilitate the mediation process to help the parties reach a resolution of their dispute. The mediator will not decide the case or dictate the terms of a settlement. Both parties win and there is no loser, if agreement occurs.

How Long Do Most Mediation Sessions Last?

Most CADRP mediation sessions last eight hours or less.

How much money can CADRP save?

Two examples of costs saved follow:

  • An EEO Complaint that goes all the way to court may cost over $200,000.
  • Agencies hiring outside mediators may pay $300 an hour or $5,000 a case.

What is the authority for CADRP?

  • In 1996, the Administrative Dispute Resolution Act passed.
  • Also, EEOC Notice 915.002 of 1995 stated, “The Equal Employment Opportunity Commission (EEOC) is firmly committed to using alternative methods for resolving disputes in all of its activities…ADR can provide faster, less expensive and contentious, and more productive results.”
  • Since November 1999, EEOC Regulation 29 CFR Part 1614 has required federal agencies to make an ADR program available during the EEO pre-complaint and formal complaint processes.

Is Mediation a Legal Proceeding?

  • It is not a legal proceeding, nor does the mediator provide legal advice.
  • When a disputant agree to mediation, they do not waive their right to proceed with the formal legal dispute resolution process, provided that they file a timely complaint/grievance.

How does a typical Mediation Conference start?

  • The mediator normally begin with an opening statement in a joint session with both parties, regarding their role as a neutral.
  • The mediator does not represent or advocate for or against either party.
  • Next, the mediator will ask the disputant, to tell in their own words about the issues and desired remedy.
  • Then the management representative gives her/his viewpoint of the dispute.

What Occurs After the Conference Opening?

  • In the middle phase, the parties have a joint discussion with clarifying questions asked and potential solutions discussed.
  • Sometimes, the mediator will meet privately (caucus) with each participant.
  • Information discussed in caucus is confidential and will generally not be shared with anyone else.
  • Caucuses may include "reality checking" (objective assessment of your position, for the demands and expectations) or to afford the supervisor or manager to obtain technical or administrative guidance from their human resources specialist or the Office of General Counsel.
  • Then the mediator may reconvene the joint session and determine if there is any area of agreement on any issue.
  • If not, the parties may continue to negotiate, possibly re-caucusing with the mediator, until it is clear if a settlement is going to emerge.

What Happens if Agreement Occurs?

  • Either party may consult with representatives regarding the proposed settlement agreement.
  • Once you have reached an agreement on all or some of the issues being mediated, the mediator will draft an agreement acceptable to all parties and representatives.
  • If the mediation originated from an EEO complaint, the mediator will provide a draft template that contains standard language typical of an EEO settlement. See page 14 for a sample agreement under the EEO complaint process.
  • For agreements reached out of a work place dispute, the mediator will provide a draft template that contains language less stringent that an EEO Complaint Agreement. See page 17 for a sample Work Place Dispute Agreement.
  • It’s important to remember that settlement terms reached must be satisfactory to both sides and are with Federal rules and regulations.
  • Both parties should pay particular attention to the terms reached to make sure that your intentions are stated clearly to those reviewing the agreement, and clear to each of the parties a year from signatures.
  • Appropriate management or legal personnel often review and approve the terms before they are effective.
  • Settlement Agreements are not final until the Office of General Counsel complete a sufficiency review, that is do the terms agreed to meet legal requirements.
  • A signed settlement agreement is legally binding on the parties.

What Aspects of Mediation are Confidential?

If you tell the mediator something in private and ask me to keep it confidential, mediators are bound by law not to disclose this information voluntarily.

  • A few rare exceptions exist, for example, the mediator may have to share information with authorities, if an individual said that they committed a crime or act of fraud, waste, or abuse, or they plan to commit a violent physical act,
  • The session is neither tape-recorded nor transcribed; after the session, notes and document copies are destroyed.
  • The mediation agreement and the resulting settlement agreement are not completely confidential, because officials have to review the agreement before it becomes binding on the agency.
  • The disputant may not request information from the mediator in any future legal proceeding, if the mediation does not resolve the dispute. 5 USC 574 contains full information.

May Representatives Attend a Mediation?

Yes, as long as you notify the mediator in advance. Either party may bring a representative or legal counsel subject to negotiated agreements for bargaining unit employees.

What Standards Guide a Mediator?

CADRP mediators follow the Model Standards of Conduct for Mediators issued by the American Arbitration Association (AAA); the American Bar Association (ABA); and the Society of Professionals in Dispute Resolution (SPIDR now part of ACR, Association for Conflict Resolution.

  1. Self-Determination: Self-determination (voluntary choices and uncoerced agreements made by parties) governs mediation. The mediator encourages parties to consider all proposed options.
  2. Impartiality: Mediator impartiality is essential for success.
  3. Conflicts of Interest: A conflict of interest is a dealing, relationship, or interest in the controversy or its outcome that may create bias or the perception of possible bias. The mediator discloses all actual and potential conflicts. If all parties agree, the mediation may proceed. If the conflict of interest casts doubt on the integrity of the process, the mediator declines to proceed.
  4. Confidentiality: The mediator shall not voluntarily disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law. All CADRP evaluation forms and program records are seen only by the CADRP Coordinator.
  5. Quality of the Process: The mediator has the proper training and experience and conducts the session timely, fairly, and diligently.

For What Types of Disputes is Mediation Helpful?

  • The parties want settlement, but personality conflicts or poor communication has hampered negotiations.
  • An underlying issue not formally part of the complaint and not resolvable by available legal relief may exist.
  • The parties shall or should have a continuing relationship.
  • If at least one party’s view of the case is unrealistic, a discussion with a mediator may move the process forward.
  • The parties expect to settle eventually, maybe at court.
  • At least one party wants to avoid an imposed outcome.
  • At least one party wants to avoid high litigation costs.
  • Despite a desire to avoid adverse precedent, traditional negotiations have reached an impasse.
  • Multiple and/ or complex issues are involved.
  • A resolution is needed quickly.
  • The parties prefer to maintain confidentiality about the issues.
  • More than one possible solution exists; no solution is necessarily “right.”

For What Types of Disputes is Mediation Less Helpful?

  • One or both parties may be guilty of criminal conduct, fraud, waste or abuse.
  • Significant legal, policy, or constitutional issues are present.
  • One party wants a precedent, a principle established, or a point proved.
  • Uniform treatment of the issue or disputant is needed, e.g., the issue has nationwide impact or many similar suits are pending.
  • A full public record of the proceeding is important.
  • The dispute significantly affects non-parties, e.g., the relationship between a local union and federal agency.
  • The case is likely to settle through unassisted negotiations.
  • One party seeks major damages.
  • One or both of the parties are not open to mediation.

How much does CADRP cost?

CADRP provides FREE mediation when both parties request it. Trained CADRP mediators are federal employees paid by their home agencies or private mediators providing Pro Bono services. The Census Bureau will reimburse the mediator for local travel, e.g., mileage. The only condition of participation is that all parties (disputants), CADRP mediators, and Federal agency coordinators, complete program evaluation forms after the mediation and forward them to the ADR Coordinator. This confidential information is used only to assess and improve CADRP.

How much money can CADRP save?

Two examples of costs saved follow:

  • An EEO Complaint that goes all the way to court may cost over $200,000.
  • Agencies hiring outside mediators may pay $300 an hour or $5,000 a case.

Does mediation work?

Approximately 80% of mediated cases are resolved. Participants express a high degree of satisfaction with the fair and efficient process that avoids the stress of a lengthy investigation and possible litigation.

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Source: U.S. Census Bureau | Equal Employment Opportunity | DIR.ADR.Coordinator@census.gov | Last Revised: March 21, 2012