ADR Background and Frequently Asked Questions
Using Alternative Dispute Resolution to Prevent and Resolve Conflicts
Introduction
Alternative Dispute Resolution (ADR) often provides a secure and satisfying way for employees to resolve workplace conflicts with peers, supervisors or supervisees.
This overview of ADR at GSFC is intended to help employees in four ways:
(1) provide an introduction to ADR; (2) assist them in deciding if ADR is
right for their situation; (3) explain how ADR services may be requested; and (4) explain what to expect when participating in an ADR process.
What is ADR?
ADR is a term used to describe a variety of approaches to resolving conflict in which the people in the conflict decide how to resolve their own problems. This is different from traditional adjudicatory or adversarial methods, in which a judge or hearing officer decides how to resolve the dispute for the people in conflict. Examples of adjudicatory methods include litigation, hearings, agency administrative processes and appeals. Examples of ADR include mediation, facilitation, interest-based problem solving, and neutral evaluation.
In ADR, people in conflict are empowered to come up with solutions that they have crafted, or at least have had a hand in crafting, so that they can be satisfied with the outcome that is reached. A neutral or unbiased third party can assist the disputing parties in a variety of ways during ADR, including:
- Opening the lines of communication;
- Helping to clarify misunderstandings;
- Providing opportunities to discuss sensitive issues in a safe setting;
- Focusing people on what is truly important to them;
- Helping parties look realistically at best and worst case alternatives to resolving the dispute in ADR;
- Encouraging creative problem solving.
Mediation is the most popular form of ADR used in Federal agencies to resolve workplace conflicts. Mediation is not designed to determine who is right or wrong. Instead, a mediator - the neutral third party in mediation - helps people in conflict (1) to talk respectfully about what they believe has happened, and then (2) to create their own resolution to the problem. A mediator does not take sides, and does not make decisions about how to resolve the conflict.
What Kinds of Conflicts are Appropriate for ADR?
Any workplace conflict that people want to resolve quickly and collaboratively and prevent from escalating is appropriate for ADR. This includes interpersonal disputes, EEO complaints, grievances, and any other workplace conflict.
When people recognize they have a disagreement with what someone is saying or doing, they have a choice of how to address the situation. Avoiding the conflict might provide some relief, at least temporarily. A direct conversation with the other person may be possible and is often preferable. A person could go right into a formal or adversarial process. More and more, people are using ADR as a tool for resolving conflicts because ADR provides a way:
- To address issues that may not be comfortable to discuss one-on-one with someone;
- To raise issues before someone feels too hurt or angry;
- To try to reach resolution that satisfies everyone, rather than one that has a winner and a loser;
- To preserve relationships; and
- To avoid potentially time consuming, adversarial, and costly proceedings;
Example 1: You have been given a performance review that you do not think was fair, and you have not been able to convey your concerns clearly to your supervisor. Mediation could allow you to get help expressing your concerns. At worst, you would understand your supervisor better. At best, your supervisor could be convinced that you deserve a better rating.
Example 2: You have a problem that you think justifies filing an EEO complaint, but you do not want to cause problems for the other person or yourself - you just want them to understand and change. Mediation could be a good way to try to do this. If mediation is not successful, as long as you meet the time frames, you can still file the EEO complaint. Or you can wait and utilize ADR after contacting an EEO counselor.
Example 3: You are a supervisor with an employee, who has been a hard worker, but who has developed some behaviors you consider unacceptable. You cannot seem to communicate in a way that the employee understands. Mediation could be a way to get some help to get the employee to understand, and to agree on what will change. If this fails, you are still free to use the disciplinary process.
Example 4: You and two other team members had an argument, and since then there has been tension in the office - nothing terrible, just less comfort than there used to be. You are not sure how to talk about the problem, but you want things to work out. Mediation could be a perfect way to talk through the problem before it grows.
What are The Benefits of ADR?
People use ADR because they understand that it can be a process that is fair to all parties without sacrificing their own individual interests. Here are some specific benefits available through ADR:
- When two people are experiencing a problem and will be in a continuing working relationship (e.g., co-workers), ADR can be a means for identifying a workable solution to the problem rather than focusing on who should be blamed for the problem. This approach often preserves the working relationship.
- ADR can help resolve conflicts more quickly and less expensively than may be possible in other resolution processes. Getting issues out on the table for discussion while positions are still flexible, and lines of communication are still open, can help people resolve a conflict before potentially lengthy and expensive adversarial proceedings are started.
- In ADR, especially in mediation, communication can be improved between people in conflict.
- ADR also can allow people to develop a more flexible or creative solution than is generally possible in more formal processes.
- In summary, in ADR, people can save time, expense, and emotional distress and, most importantly, build healthy work relationships.
Is Mediation Private?
Mediation, the primary ADR process used at NASA, is designed to be a private process. For example, one of the mediator's roles is to serve as an intermediary who works to keep discussions between the participants respectful and focused on solving the problems at hand. Additionally, all participants in mediation have the right to be accompanied by a representative (e.g., union, family member, attorney).
An important aspect of mediation is confidentiality. Confidentiality applies to what mediators can reveal, what the parties can reveal, and who can learn about the terms of a settlement agreement.
Mediators are prohibited from discussing what was said in mediation with anyone outside the mediation, except with the participants' permission. There are a few exceptions, such as where someone in the mediation makes a threat of violence, or if a court orders a mediator to testify. When a mediator "caucuses" with one participant during the mediation and that participant is agreeable, the mediator may share what was said in the private meeting with other mediation participants (see "What Happens in Mediation," below, for more on this).
A signed settlement agreement is not automatically protected by confidentiality. However, a provision to keep the terms of the settlement confidential is often included in the settlement. Such provisions do not apply to those individuals who need to know about the terms of the agreement for implementation purposes.
The participants generally have the choice of deciding if they will keep what was said during mediation confidential. Often mediators address this issue by asking parties to sign confidentiality agreements before the mediation begins. Whether or not parties sign a confidentiality agreement, if the mediation does not end in an agreement and the conflict ends up in court, the participants cannot use in court what they learned in mediation unless they could have learned it outside the mediation. Generally speaking, communications made during a mediation or settlement negotiation are not subject to discovery in litigation. Information otherwise subject to discovery however, does not become inadmissible or protected from disclosure solely by reason of its use in mediation.
Finally, by attempting to resolve a dispute through ADR, employees do not give up their legal rights to file a complaint or grievance, provided they meet the required filing deadline for the particular complaint or grievance process.
How to Request ADR Services
When you have a concern or issue and you need assistance in resolving it, call the ADR Program Office as early as possible for assistance (301) 286-0482. Mediation is the foundation of GSFC's ADR program. Facilitation and Consultation, however, are also available. When you talk with the ADR program manager, (s)he will explain the choices available to you and will help you decide if ADR is appropriate for your situation. Additional information may be found on the ADR web site: http://adr.gsfc.nasa.gov
If you have filed an informal EEO complaint, in most instances the EEO counselor will offer you the option of using ADR as an alternative to counseling. You can also ask your EEO counselor for ADR as an alternative to counseling. When you use ADR, the timeline for completing the informal EEO process is automatically extended from 30 days to 90 days.
If you have filed an administrative grievance, ask your supervisor or employee relations specialist about using ADR as an alternative to the grievance process, or at least as a first step. If you are a bargaining unit member and have filed a negotiated grievance, check with your union steward about the availability of ADR.
When an employee requests mediation, the ADR Program Manager will generally contact the other person or people in the conflict to see if they are willing to mediate. In the EEO process, once an agency or counselor has offered ADR as an option to a complainant and the complainant elects ADR, the center must provide a management official with settlement authority to participate in the process.
What Happens In Mediation?
Mediations are generally scheduled in a neutral location away from the usual work site. The mediator assigned will either be from the Federal Shared Neutrals Program or from a private source. Care is taken to assure that you receive a mediator appropriate for your situation.
The actual mediation typically begins with the mediator, the parties, and their representatives all together. The mediator makes an opening statement to explain the mediation process and ground rules for conducting the mediation. Next, each party is afforded the opportunity to state the issues in his/her own words and explain the personal impact of those issues. Generally, the party who requested the mediation will begin.
After the initial statements are completed the mediator may either continue to meet with all the parties jointly, or "caucus" (meet privately) with each party. During a caucus, each party may individually express additional interests, needs, and issues confidentially to the mediator. The mediator may explore individually with each party any matters he/she would like the mediator to share with the other party. Unless otherwise specified by the individual party, all matters discussed in caucus remain confidential.
After (or instead of) a caucus, the parties may meet together to develop options, or steps each may take, toward resolution. If the parties reach a mutually acceptable resolution, the terms of the resolution are prepared, generally in writing, for each party to sign. In the mediation of an EEO complaint, grievance or a personnel action, agreements reached in the mediation must be in writing. Should the mediation not result in a resolution, the mediator reviews the progress made and advises the parties of options available through other avenues of redress. To get a better sense of what mediation is like, you can watch "A Better Way," an 18-minute video on mediation (link to http://151.121.3.222:8080/ramgen/cprc/abw.rm)).
Other Ways to Deal with Workplace Conflict
For a description of the many avenues for resolving workplace conflict, you may view the Equal Opportunity Program web site at http://eeo.gsfc.nasa.gov and Office of Human Resources web site at http://ohr.gsfc.nasa.gov/employee_relations/home.htm. Bargaining unit information, is located at http://ohr.gsfc.nasa.gov/Labor_Relations/home.htm.
ADR Resources
Some resources that can assist you in handling or preventing conflict situations include:
- ADR Web Site: http://adr.gsfc.nasa.gov
- "A Better Way": An 18-minute video demonstrating mediation in a workplace dispute. http://151.121.3.222:8080/ramgen/cprc/abw.rm
- NASA NPD 2010.2B, http://nodis3.gsfc.nasa.gov
- ADR ACT 1996, Public Law 1-4-320, http://www.usdoj.gov/adr/pdf/adra.pdf
- EEOC Management Directive-110, http://www.eeoc.gov/federal/md110
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